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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


( 


>< 


LAW   LIBRARY, 

OF 
LOS  ANGELES  COUNTY 

POMONA  BRANCH 

WITHDRAWN 


1.  A.«*.L.I. 


--^ 


1     i'-  "   1. 


<s 


FEDERAL  ^   ^ 

LIABILITIES  OF  CARRIERS 


A    TREATISE    UPON    THE    DUTIES    AND    LIABII>ITIES    OF    COMMON 
CARRIERS  BY  RAILROADS  UNDER  ALL,  FEDERAL  LAWS.  WITH 
AN     APPENDIX     CONTAINING   A     COPY     OF     THE     FEDERAL 
STATUTES     AFFECTING     RAIUROADS,     AND     THE    GEN- 
ERAL   ORDERS    OF    THE    DIRECTOR    GENERAL    OF 
RAILROADS    UNDER    THE     FEDERAL    CONTROL 
ACT     OF    1918. 


By  M.  G.  ROBERTS 

Of  the  Missouri  Bar 

Aut)W7-   of   ''Injuries   to  Interstate  Employes   on  Railroads' 


IN  TWO  VOLUMES 

VOLUME  I 


CHICAGO 

CALLAGHAN    AND    COMPANY 

191S 


'^ 


T 
1918 


COPYRIGHT   1918 

BY 
M.  G.   ROBERTS. 


c 

(*3 


TO  THE 
MEMORY  OF  MY 

FATHER  AND  MOTHER 


7358B7 


PREFACE 

At  least  tliree-fourtlis  of  the  traffic  carried  by  the 
railroads  within  the  United  States  is  interstate  or 
foreign  in  character  and,  therefore,  falls  within  the 
control  of  Congress  under  the  commerce  clause.  During 
the  course  of  recent  years,  state  laws,  rules  and  regu- 
lations governing  the  rights  of  interstate  shippers 
and  employes  and  the  correlative  duties  of  the  carriers 
have  been  superseded  by  federal  statutes  and  common 
law  principles  as  intei7)reted  and  applied  in  the  national 
courts. 

The  vast  and  revolutionary  changes  wrought  by  the 
enactment  of  these  national  laws,  have  created  a 
distinct  and  separate  body  of  jurisprudence  from  tliat 
which  regulates  the  obligations  of  common  carriers  to 
intrastate  shippers  and  employes.  The  law  of  carriers, 
therefore,  as  expounded  in  text  books  dealing  with  the 
diversified  statutes  of  the  several  states  and  the 
principles  of  the  common  law  as  inter]ireted  in  the 
decisions  of  state  courts,  has  become  obsolete  as  to  all 
transportation  duties  not  intrastate  in  character:  for 
the  enactment  of  the  Interstate  Commerce  Act,  the 
Carmack  Amendment,  the  first  and  second  Cummins 
amendments  of  1915  and  1916,  the  Act  of  1918  providing 
for  government  control  during  the  war  with  Germany, 
the  federal  Em^iloyers'  Liability  Act,  the  Safety  Ap- 
pliance Act,  the  Hours  of  Service  Act,  and  other 
federal  statutes,  has  produced  and  established  uniform 
rules  of  liability  govci'iiing  cari-iers  throughout  the 
United  States. 

vii 


viii  Preface. 

c^  ,,-A  treatise  dealing  witli  the  responsibilities  of  the 
faiTi'oad'5  imder /ajl  0:f  these  federal  laws  in  the  light 
of  the  binding  decisions  of  the  national  courts  and 
the  application  thereof  by  state  courts,  is  opportune 
and  should  be  of  pornvanent  value.  The  jirofession  has 
been  liberally  supplied  with  digests  and  annotations  of 
decisions  under  federal  statutes,  but  the  limitations  of 
such  useful  publications  are  such  that  no  attempt  is 
usually  made  to  distinguish  the  wheat  from  the  chaff, 
the  correct  from  the  erroneous  ruling,  or  to  extract 
the  elementai'y  principles  from  a  nuiltitude  of  judicial 
voices. 

In  the  following  pages,  an  effort  has  been  made  to 
methodically  classify  and  expound  the  fundamental  rules 
vshich  measure  the  obligations  of  carriers  under  the 
national  lau's;  to  illustrate  these  principles  by  their 
application  in  the  leading  adjudicated  cases  in  federal 
and  state  courts ;  to  point  out  the  decisions  which  do 
not  correctly  interpret  the  law  of  interstate  commerce 
as  regulated  by  the  federal  statutes,  and,  in  short,  to 
write  a  text  book  covering  the  entire  subject  matter 
and  not  a  digest  or  an  annotation.  Recognizing  also 
the  dual  control  of  the  federal  government  and  the 
states,  one  over  interstate  and  the  other  over  intra- 
state transportation,  an  endeavor  has  been  made  to 
discuss  the  principles  defining  the  "twilight  zone" 
wherein  the  jurisdiction  of  the  one  ends  and  the  other 
begins.  Such  problems,  in  the  absence  of  an  amend- 
ment to  the  federal  Constitution,  will  constantly  arise 
in  the  a))pIication  of  the  rules  of  law  to  the  concrete 
facts  of  a  particular  case. 

Part  One  of  the  Treatise  deals  with  the  general 
rules  governing  federal  and  state  control  over  inter- 
state common  carriers  and  transportation  under  the 
commerce  clause,  and  also,  separately,  during  times  of 
war  under  the  war  clause  of  the  Constitution,  includ- 
ing the  national  act  of  1918  providing  for  federal 
control  of  carriers   during  the  war  with   Germany. 

Part  Two  treats  of  the  duties  and  liabilities  of 
common   carriers   to    shippers   under   all   federal    inter- 


Preface.  ix 

state  laws  including  the  Interstate  Commerce  Act  and 
supplementary  k'<;islation— tlio  n"])])v.rn  Act  of  1906, 
tlie  Carmack  Anicndnicni  and  tlie  first  and  second 
Cummins  amendments. 

Part  Three  deals  with  personal  injuries  to  inter- 
state employes  of  common  carriers  by  railroad,  being 
a  treatise  of  the  Federal  Employers'  Liability  Act. 
This  part  of  the  work  includes  the  author's  former 
treatise,  ''Injuries  to  Interstate  Employes  on  Rail- 
roads" which  has  been  thoroughly  revised,  rewritten, 
greatly  enlarged  and  contains  copious  citations  of  the 
new  and  late  decisions. 

Part  Four  treats  of  the  duties  and  liabilities  of 
interstate  carriers  under  the  federal  Safety  Appliance 
Act,  as  amended. 

Part  Five  includes  the  duties  of  carriers  under 
other  miscellaneous  federal  interstate  laws  such  as  the 
Hours  of  Service  Act,  Twenty-eight  Hour  Live  Stock 
Law,  the  Boiler  Inspection  Act,  xVdamson  Law,  etc. 

I  am  greatly  indebted  to  Mr.  J.  C.  Cahill,  Managing 
Editor  of  Callaghan  and  Company  for  many  helpful 
suggestions,  and  to  Judge  M.  M.  Milligan  of  Richmond, 
Missouri,  and  Mr.  M.  J.  Henderson  of  the  Kansas  City 
Bar  for  valuable  assistance  during  the  four  years  the 
work  has  been  in  course  of  preparation. 

St.  Joseph,  Mo. 

November,  1918. 

M.  G.  Roberts. 


TABLE  OF  CONTENTS 


VOLUME  I. 

Part  One 
federal  and  state  control  over  common  carriers. 

chapter  i. 

THE    COMMERCE    CLAUSE    OF    THE    FEDERAL    CONSTITUTION. 

Sec.  1.  Congress  Vested  with  Authority  to  Regulate  All  Interstate 
and  Foreign  Commerce. 

Sec.  2.  Early  Judicial  Construction  of  the  Commerce  Clause— Gib- 
bons V.  Ogden. 

Sec.  3.  Judicial  Definitions  of  Term  "Interstate  Commerce"  as  Used 
in   the   Federal  Constitution. 

Sec.  4.  Transportation  from  one  State  to  Another  an  Essential  Ele- 
ment of  Interstate  Commerce. 

Sec.  5.  Congressional  Grant  "to  Regulate"  Commerce  Defined  and 
Explained. 

Sec.  6.  Importation  of  Legitimate  Articles  of  Commerce  from  one 
State  to  Another  Immune  from  State  Legislation. 

Sec.  7.  Commencement  and  Termination  of  Protection  of  the  Com- 
merce  Clause. — Original    Package   Rule. 

Sec.  8.  States  may  Forbid  Introduction  of  or  E.\portation  of  all 
Articles  not  Legitimate  Subjects  of  Trade  and  Commerce. 

Sec.  9.  Statutory  Exceptions  Empowering  States  to  Regulate  Inter- 
state  Shipments   of    Intoxicating   Liquors. 

(xi) 


xii  Federal  Liahili  iiks  of  Carriers. 


CHAPTER  II. 

RESPECTIVE  POWERS  OF  THE  STATES  AND  NATIONAL  GOVERN- 
MENT OVER  INTERSTATE  AND  INTRASTATE 
CARRIERS. 

Sec.  10.     Introductory. 

Sec.  11.  General  Principles  Determining  State  and  National  Control 
Over    Interstate    Carriers    and    Transportation. 

Sec.  12.  Foregoing  Doctrines  Illustrated  and  Applied  to  Divers  Phases 
of    Interstate    Carriage    and    Transportation. 

Sec.  13.  Federal  Laws  and  Regulations  Encroaching  upon  Powers 
of  the  States  over  Their  Internal  Affairs,  Invalid. 

Sec.  14.  Federal  Regulation  to  be  Valid  Must  Have  Real  or  Substan- 
tial  Connection    with    Interstate   Commerce. 

Sec.  15.  "When  Congressional  Power  may  be  Validly  Exercised  over 
Intrastate  Subject  Matters. 

Sec.  16.  When  Congress  Legislates  upon  a  Subject  Matter  of  Com- 
merce, State  Laws  Covering  Same  Field  are  Thereby  Super- 
seded. 

Sec.  17.  Difficulty  of  Defining  Field  or  Subject  Matter  Covered  by 
Congressional   Legislation. 

Sec.  18.  Common  Law  Principles  as  Applied  in  State  Courts  Super- 
seded as  to  Subject  Matters  Covered  by  Federal  Statutes. 

Sec.  19.  Power  of  States  to  Regulate  Interstate  Rates  of  Carriers 
Formerly  Upheld  by  Supreme  Court — The  Granger  Cases. 

Sec.  20.  State  Control  Over  and  Power  to  Regulate  Rates  and  Charges 
on    Interstate   Shipments   Denied. 

Sec.  21.  Passenger  Fares  for  Interstate  Journeys  Prescribed  by  Munic- 
ipal   Ordinances    and    Accepted    by    Carriers    Invalid. 

Sec.  22.  Power  of  States  over  Intrastate  Commerce  as  Broad  and 
Exclusive  as  Control  of  Congress  over  Interstate  Com- 
merce. 

Sec.  23.  States  May  Regulate  and  Fix  Reasonable  Rates  for  Intra- 
state Transportation. 

Sec.  24.  Statutes  of  States  Regulating  Delivery  of  Cars  for  Inter- 
state Shipment  Inoperative. 

Sec.  25.  States  may  Compel  Switch  Connections  with  Private  Side 
Tracks  for  Intrastate  Business. 

Sec.  26.  State  Statutes  Prescribing  Rates  Specified  in  Bill  of  Lading 
Void  as  to  Interstate  by  Valid  as  to  Intrastate  Ship- 
ments. 

Sec.  27.  State  Laws  and  Decisions  Governing  Liability  for  Loss  and 
Damage  to  Property  Superseded  by  Carmack  Amendment. 

Sec.  28.  State  Statute  Authorizing  Issuance  of  Transports^tion  in 
Payment  for  Advertising  Invalid. 

Sec.  29.  States  May  Require  Operation  of  Trains  Between  Intrastate 
Points    on    Interstate   Lines — Limitations    and    Exceptions. 


Table  op  Contents.  xiii 

Sec.  30.  State  and  Municipal  Regulations  Prescribing  Speed,  Signals 
and  Stoppage  of  Interstate  Trains. 

Sec.  31.  Georgia  "Blow-Post"  Law  Invalid,  Being  a  Direct  Burd>  n 
upon    Interstate  Commerce. 

Sec.  32.  States  May  Compel  Carriers  to  Make  and  Maintain  Track 
Connections  for  Interchange  of  Traffic. 

Sec.  33.  Validity  of  State  Laws  Providing  for  "Full  Crews"  on  Inter- 
state Trains. 

Sec.  34.     State  Regulations  or  Charges  for   Transportation  by   Water. 

Sec.  35.  Statutory  Enactment  of  States  Requiring  Facilities  and  Ap- 
pliances on  Interstate  Trains. 

Sec.  36.  Power  of  States  over  Interstate  Employers  and  Employes 
in  Absence  of  Federal  Legislation. 

Sec.  37.  Interstate  Messages  by  Telegraph  Prior  to  Amendment  of 
1910  to  Act  to   Regulate  Commerce. 

Sec.  38.  State  Laws  Regulating  Interstate  and  Foreign  Messages  of 
Telegraph,  Telephone,  and  Cable  Companies,  Invalid. 

Sec.  39.  States  May  Not  Regulate  "Ticker  Service"  of  Interstate 
Telegraph  Companies. 

Sec.  40.  State  and  Municipal  Regulations  of  the  Interstate  Business 
of  Express  Companies. 

Sec.  41.  Valid  Municipal  Regulations  of  Drivers  on  Streets  Carry- 
ing Interstate  TraflSc. 

CHAPTER  III. 

FEDERAL    CONTROL    OF    CARRIERS    DURING    TIMES    OF    WAR. 

Sec.  42.  Powers  of  Congress  over  Carriers  during  Times  of  Peace 
and  War  Distinguished. 

Sec.  43.  President  Empowered  to  Assume  Control  of  Transportation 
Systems  in  Time  of  War. 

Sec.  44.  Proclamation  Assuming  Control  of  Railroads  Under  Fore- 
going Provisions. 

Sec.  45.  National  Statute  Providing  for  Federal  Control  and  Com- 
pensation of  Carriers  During  the  Period  of  War  with  Ger- 
many. 

Sec.  46.  Purpose  of  Congress  in  Enacting  the  Act  Providing  for  Fed- 
eral Control  During  War. 

Sec.  47.  Effect  of  National  Statute  Providing  for  Federal  Control 
upon  other  Laws,  Federal  and  State. 

Sec.  48.  President  Authorized  to  Initiate  Rates  and  Charges  for 
Transportation  During  Period  of  Federal  Control. 

Sec.  49.  Actions  at  Law  or  Suits  in  Equity  may  be  Brought  by  and 
Against  Carriers  under  Federal  Control. 

Sec.  50.  Penalty  for  Violations  of  the  Provisions  of  the  Federal  Con- 
trol Act. 

Sec.  51.  When  Federal  Control  of  Transportation  System  Under  the 
Statute    shall    Terminate. 


xiv  Fedeeal  Liabilities  of  Carriers. 


Part  Two 

DUTIES  AND  LIABILITIES  OF  COMMON  CARRIERS  TO  SHIPPERS 
UNDER  ALL   FEDERAL   INTERSTATE   LAWS. 

The  Act  to  Regulate  Commerce  and 
Supplementary  Legislation. 

Carmack  and  Cummins  Amendments. 
Federal  Bill  of  Lading  Law. 

CHAPTER    IV. 

THE  ACT  TO  REGULATE  COMMERCE  AS  ORIGINALLY  ENACTED 

—ITS  GENESIS,   PURPOSE,  GENERAL   SCOPE 

AND    VALIDITY. 

Sec.  52.  Brief  Historical  Review  of  Federal  Control  over  Carriers 
and  Scope  Thereof. 

Sec.  53.  Causes  Leading  to  Enactment  of  the  Act  to  Regulate  Com- 
merce. 

Sec.  54.  Principles  of  the  Common  Law  Inadequate  to  Curb  Evils  of 
Railroad  Operation. 

Sec.  55.  Futile  Attempts  of  the  States  to  Regulate  Charges  for  Inter- 
state Transportation. 

Sec.  56.  Effect  of  the  Decision  in  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Illi- 
nois. 

Sec.  57.  Power  of  Congress  to  Regulate  the  Duties  of  Carriers  of 
Interstate  Traffic. 

Sec.  58.  First  Step  Towards  Federal  Regulation  of  Interstate  Trans- 
portation by  Rail — The  CuUom  Committee. 

Sec.  59.  Report  of  Cullom  Committee  to  Congress  and  Bill  Recom- 
mended on  January  18,  1886. 

Sec.  60.  Fundamental  Requirements  of  the  Act  to  Regulate  Commerce 
as  Originally  Enacted  in  1887. 

Sec.  61.  Purpose  of  Congress  in  Enacting  Original  Act  to  Regulate 
Interstate  Commerce. 

Sec.  62.  How  the  Interstate  Commerce  A^t  should  be  Construed  and 
Interpreted. 

Sec.  63.  Commission  not  Authorized  Under  Original  Act  of  1887  to 
Prescribe   Rates  for  Transportation. 

CHAPTER  V. 

CHRONOLOGICAL     REVIEW     OF     LEADING     AMENDMENTS     OF 

STATUTE. 

Sec.  64.     Scope  of  the  Chapter. 

Sec.   65.    Amendments  of  1889   and   1891  to   the   Interstate  Commerce 

Act. 
Sec.  66.     Invalid    Provision    of    Section    12    Remedied    by    Passage    of 

Compulsory  Testimony  Act  of  1893. 


Table  of  Contents.  xv 

Sec.  67.  Provisions  rrohil)itinj<  Rebates  and  Discriminations  Strength- 
ened by  Passage  of  Klkins  Act  of  1903. 

Sec.  H8.  Scope  of  Act  and  Powers  of  Commission  Greatly  Extended 
Through  Amendments  Incorporated  by  Hepburn  Act  of 
1906. 

Sec.  69.  Initial  Carrier  Liable  for  Loss  and  Damage  on  Lines  of  Con- 
necting  Carrier — Carmack    Amendment. 

Sec.  70.  Commission  Empowered  to  Order  Switch  Connection  with 
Private  Side  Tracks  and   Lateral    Branch  Lines. 

Sec.  71.  Carriers  Prohibited  from  Owning  or  Having  an  Interest  in 
Freight    Transported — the    Commodity    Clause. 

Sec.  72.  Amendments  Authorizing  Commission  to  Prescribe  Through 
Routes   and   Joint  Rates. 

Sec.  73.  Commission  Authorized  to  Determine  Allowances  to  Ship- 
pers for  Services  Rendered  in  Connection  with  Transpor- 
tation. 

Sec.  74.  Amendment  of  1906  Prohibiting  the  Issuance  and  Giving  of 
Free   Passes — Persons   Excepted. 

Sec.  75.  Forms  of  All  Accounts,  Records  and  Memoranda  Kept  by 
Interstate  Carriers  Placed  under  Jurisdiction  of  Commis- 
sion. 

Sec.  76.  Amendments  and  Additions  to  the  Statute  by  the  Mann- 
Elkins  Act  of  1910. 

Sec.  77.  Fraudulent  Claims  for  Loss  and  Damage  by  Shippers  Against 
Carriers  Penalized. 

Sec.  78.  Power  Conferred  upon  Commission  by  1910  Amendment  to 
Suspend  Proposed  Changes  in  Rates. 

Sec.  79.  The  1910  Amendment  to  the  Long  and  Short  Haul  Provi- 
sion. 

Sec.  80.  Statutory  Duty  of  Carriers  to  Route  Interstate  Freight  as 
Directed  by  Shippers. 

Sec.  81.  Carriers  and  Their  Agents  Prohibited  from  Giving  Informa- 
tion Relating  to  Business   of   Interstate  Shippers. 

Sec.  82.  Extension  of  Jurisdiction  of  Commission  over  Water  Car- 
riers by  Panama  Canal   Act  of  1912. 

Sec.  83.  Act  of  1913  Requiring  Commission  to  Ascertain  Valuation 
of  Property   Owned   or  Used   by  all    Interstate   Carriers. 

Sec.  84.  Amendment  of  1917  Penalizing  Persons  for  Obstructing 
Movement  of  Interstate  Commerce  During  War. 

Sec.  85.  President  Authorized  During  War  to  Direct  Movement  of 
Commodities  Essential  to  National  Defense. 

CHAPTER    VI. 

COMMON  CARRIERS  SUBJECT  TO  THE  INTERSTATE  COMMERCE 

ACT. 

Sec.  86.     The  Statutory  Provision. 

Sec.  87.  Who  are  Common  Carriers  Within  the  Cleaning  of  the  Inter- 
state Commerce  Act. 


xvi  Fedekal  Liabilities  oe  Carbiees. 

Sec.  8S.  Distinction  Between  Common  Carriers  and  Plant  Facilities 
— Industrial  Railways. 

Sec.  89.  All  Carriers  in  Territories,  District  of  Columbia  and  Alaska 
Included. 

Sec.  90.  When  Railroads  Wholly  Within  Limits  of  Single  State  are 
Under  Federal  Control — Former  and  Present  Rule. 

Sec.  91.  Carriers  Engaged  in  Transportation  Between  Points  in 
United    States    and   Adjacent    Foreign    Countries. 

Sec.  92.  Carriers  by  Water  Included  as  to  Continuous  Shipments 
Under  Common  Arrangements  with  Carriers  by  Rail. 

Sec.  93.  Independent  Ferry  Companies  Included  as  to  Shipments  Un- 
der Common  Arrangement  with  Rail   Carriers. 

Sec.  94.  Common  Control,  Management,  and  Arrangement  for  Con- 
tinuous Transportation,  Defined  and  Explained. 

Sec.  95.  Extension  of  Federal  Jurisdiction  Over  Water  Carriers  by 
Panama  Canal  Act  of  1912. 

Sec.  96.  Amendment  Applies  to  Traffic  Between  Two  Points  in  United 
States  Passing  Through  Panama  Canal  "or  Otherwise." 

Sec.  97.  Control  or  Ownership  of  Competitive  Water  Line  by  Rail 
Carrier   Subject  to  Approval  of   Commission. 

Sec.  98.  Policy  of  Congress  in  Adoption  of  That  Part  of  Panama 
Canal  Act  Forbidding  Ownership  of  Water  Lines  by  Rail 
roads. 

Sec.  99.  Bridges  and  Bridge  Companies  Subject  to  Federal  Act, 
When. 

Sec.  100.  Street  Railroads  Crossing  State  Lines  not  Subject  to  Inter 
state  Commerce  Act. 

Sec.  101.  Electric  Interurban  Railroads  Engaged  in  Interstate  Com- 
merce Controlled  by  Statute. 

Sec.  102.  Status  of  Terminal  Railroads  and  Belt  Lines  Participating 
in  Movement  of  Interstate  Traffic. 

Sec.  103.  Stock  Yards  Company  Transferring  Livestock  Between  its 
Pens  and  Tracks  of  Trunk  Lines,  a  Common  Carrier. 

Sec.  104.  Status  of  Logging  Roads  as  Interstate  Carriers — the  Tap 
Line  Cases. 

Sec.  105.  Private  Car  Lines  not  Common  Carriers  within  Meaning 
of  Act  to  Regulate  Commerce. 

Sec.  106.  Common  Carriers  of  Oil  and  Other  Commodities  by  Pipe 
Line  Included. 

Sec.  107.  Pipe  Line  Companies  Transporting  Solely  Their  Own  Oil, 
Common  Carriers,  When. 

Sec.  108.  Assumption  of  National  Control  over  Interstate  and  For- 
eign  Cable,  Telephone  and   Telegraph   Companies. 

Sec.  109.  Independent  Express  Companies  Included  by  Hepburn 
Amendment  of  1906. 

Sec.  110.  Sleeping  Car  Companies  Placed  Under  Jurisdiction  of  Com- 
mission by  Hepburn  Act  of  1906. 

Sec.    111.     Receivers  and  Purchasers   Pendente  Lite. 


Tahle  of  Contents.  xv.i 

Sec.  112.     Railroad  Companies  Incorporated  In  Foreign  Countries  and 

Engaged  in   Interstate  Commerce. 
Sec.  113.     Statute  Applies  to  Individuals  and   Partnerships  as  Weli  as 

Incorporated  Companies. 

CHAPTER  VII. 

SHIPMENTS    AND    TRANSPORTATION    SERVICES    CONTROLLEn 
BY    INTERSTATE    COMMERCE    ACT. 

Sec.  114.  Constitutive  Elements  of  Interstate  Transportation  Within 
the  Act. 

Sec.  115.  Illustrative  Applications  of  the  Foregoing  Principles  in 
Adjudicated  Cases. 

Sec.  116.  Shipments  Between  Two  Points  in  Same  State  Passing  En- 
route  Through  Another  State. 

Sec.  117.  Absence  of  Definite  Destination  in  Foreign  Country  or  in 
Other  State  Immaterial. 

Sec.  118.  Change  of  Destination  in  Transit  as  Affecting  Interstate 
Character   of   Shipment. 

Sec.  119.  Interstate  Transportation  Includes  Receipt  and  Delivery  of 
Traffic  as  Well  as  Actual  Carriage. 

Sec.  120.  When  Temporary  Stoppage  or  Interruption  Changes  Inter- 
state Character  of  Shipment  into  Intrastate  and  Vice 
Versa. 

Sec.  121.  When  Interstate  or  Intrastate  Character  of  a  Shipment  is 
not  Changed  by  Temporary   Stoppage  or  Interruption. 

Sec.  122.  Sale  and  Delivery  of  Coal  f.  o.  b.  Cars  at  Mine  for  Trans- 
portation to  Purchasers  Outside  the  State. 

Sec.  123.  Shipments  from  Points  in  One  State  to  a  Port  of  Trans- 
shipment  in    Same   State   for   Export    Included. 

Sec.  124.  Shipments  from  One  Foreign  Country  to  Another  Through 
the    United    States    Beyond    Control    of    Commission. 

Sec.  125.  Regulation  of  Terminal  Charges,  Service  and  Facilities  for 
Interstate  Shipments. 

Sec.  126.  Transportation  Wholly  Within  One  State  Not  Under  Fed- 
eral Control. 

Sec.  127.  Transit  Privileges  Part  of  Transportation  Under  Control 
of  Interstate  Commerce  Commission. 

Sec.  128.  Regulation  of  Grain  Elevation  Service  Under  Federal  Con- 
trol. 

Sec.  129.  Loading,  Dunnage  and  Special  Preparation  of  Freight  Cars 
for  Shipments  of  Particular  Commodities. 

Sec.  130.  Weighing  of  Interstate  Shipments  of  Freight  Under  Federal 
Control. 

Sec.  131.  Regulations  and  Rules  Concerning  Baggage  of  Interstate 
Passengers  Under  Control  of  Commission. 

Sec.  132.  Refrigeration,  Ventilation  and  Icing  of  Property  in  Cars 
Part   of  Transportation   Duties  of   Interstate   Carriers. 

Sec.  133.     Track  Storage  and  Demurrage  Charges  in  Connection  With 

1  Control   Carriers  B 


xviii  Feueeal  Ll\bilities  or  Carriers. 

Interstate  Shipments  Under  Control  of  Commission. 

Sec.  134.  Wharves  and  Connecting  Tracks  of  Interstate  Carriers  Pub- 
lic Facilities  Under  Federal  Control. 

Sec.  135.  Jurisdiction  of  Commission  Over  Port  Switching  Servicf; 
Performed  on  Import  Traffic. 

Sec.  136.  Interstate  Transportation  by  Land  of  Explosives  and  Other 
Dangerous  Articles  Under  Federal  Control. 

Sec.  137.  Peddling    Merchandise   from   Cars   not   Transportation    Serv- 
ice Which  Carriers  may  be  Compelled  to  Furnish. 
'  Sec.  138.     Terms    "Railroad"    and    "Transportation"    Defined    by    Stat- 
ute. 

Sec.  139.     Statute  not  Applicable   to  all   Interstate   Commerce. 

CHAPTER   VIII. 

UNJUST    DISCRIMINATIONS    AND    UNLAWFUL    PREFERENCES 

BY    INTERSTATE    CARRIERS— GENERAL 

PRINCIPLES. 

Sec.  140.  Statutory  Definitions  of  Unjust  Discriminations  and  Undue 
Preferences. 

Sec.  141.  Unlawful  Discriminations  and  Preferences  Between  Ship- 
pers Under  the  Common  Law. 

Sec.  142.  Origin  and  History  of  Sections  Two  and  Three  of  the  Inter- 
state Commerce  Act. 

Sec.  143.  Purpose  and  Object  of  Congress  in  the  Enactment  of  Sec- 
tions Two  and  Three. 

Sec.  144.     Relation  and  Distinction  Between  Sections  Two  and  Three. 

Sec.  14.5.  Distinction  Between  Section  Two  and  Clause  in  Section 
One  Prohibiting  Unjust  and  Unreasonable  Charges. 

Sec.  146.  Statutory  Conditions  Rendered  Difference  in  Charges  Un- 
lawful Under  Section  Two. 

Sec.  147.  Circumstances  and  Conditions  Determining  Dissimilarity  of 
Service  Under  Section  2  Refer  Strictly  to  Matters  of  Car- 
riage. 

Sec.  148.  Unjust  Discrimination  and  Preference  Sections  of  Original 
Act  Apply  to  Subsequent  Amendments  Defining  Railroads 
and  Transportation. 

Sec.  149.  Distinction  Between  Ordinary  Definition  of  Rebate  and  the 
Meaning  of  That  Term  Under  Provisions  of  Section  Two. 

Sec.  150.  Discrimination  Under  Section  3  Must  Ordinarily  be  Prej- 
udicial to  One  Party  and  Source  of  Advantage  of  the 
Other. 

Sec.  151.  Relation  of  Discrimination  Clause  to  the  Elkins  Act  of 
1903. 

Sec.  152.  All  Methods  and  Means  Employed  Unlawful  if  Ultimate 
Results  Thereof  Cause  Unjust  Discriminations. 

Sec.  153.  Effect  of  Statute  Upon  Contracts  with  Discriminatory  Pro- 
visions. 


Table  of  Contents.  xix 

Sec.  154.  Terras  "Unreasonable"  or  "I'ndue"  Imply  Comparison  of 
all   Facts  and   Circumstances   Applicable. 

Sec.  155.  Existence  of  Undue  Preference  or  Unjust  Discrimination 
a  Question  of  Fact. 

Sec.  156.     Strict  Uniformity   Not  Always   Required. 

Sec.  157.  Long  Existence  of  Undue  Discrimination  No  Justification 
for  its  Continuance. 

Sec.  158.  Prohibition  Against  Unjust  Discrimination  Covers  .Judg- 
ments by  Consent  and  Waiver  of  Valid   Defenses. 

Sec.  159.  Proof  of  Injury  and  Measure  of  Damages  in  Actions  for 
Unlawful  Discrimination. 

CHAPTER    IX. 

DISCRIMINATIONS   BETWEEN   SHIPPERS  AS   TO   RATES,    SERV- 
ICES, FACILITIES  AND  ALLOWANCES. 

Sec.  160.  Carrier  Must  Deal  with  All  Its  Shippers  on  Absolute  Equal- 
ity and  Must  Afford  Equal  Facilities. 

Sec.  161.  Difference  in  Rates  When  Based  Upon  Difference  in  Serv- 
ice Not  Discriminatory. 

Sec.  162.     Different   Rates   for   Wholesalers   and    Retailers    Prohibited. 

Sec.  163.  Rates  for  Train  Loads  Lower  Than  for  Single  Car  Loads 
Subject  Small   Shippers  to   Undue   Disadvantage. 

Sec.  164.  Higher  Rates  on  Domestic  Than  on  Export  Traffic  Between 
Ports  of  Entry  and  Inland  Points  not  Discriminatory. 

Sec.  165.     Doctrine  of  Import  Case  Applied  and  Illustrated. 

Sec.  166.  Use  of  Terminal  Facilities  by  Permitting  Interchange  of 
Traffic  with  one  Carrier  and  Denying  it  to  Another. 

Sec.  167.  Discrimination  in  Reserving  Right  to  Route  Through  Ship- 
ments Beyond  Carrier's  Terminal — Former  and  Present 
Rule. 

Sec.  168.  Discrimination  in  Refusal  of  Rail  Carriers  to  Establish 
Through  Routes  and  Joint  Rates  with  Water  Lines. 

Sec.  169.  Exclusive  Privileges  for  Auxiliary  Facilities  at  Stations 
and  Terminal  Grounds  Lawful. 

Sec.  170.  Distribution  of  Cars  Among  Shippers  During  Time  of  Short- 
age Must  be  Free  from  Discrimination. 

Sec.  171.  Preferences  and  Discriminations  in  Demurrage  and  Track 
Storage  Charges. 

Sec.  172.  Unreasonable  Compensation  to  Shippers  for  Services  in 
Connection   with  Transportation. 

Sec.  173.     Abnormal  Division  of  Joint  Rates  to  Carrier  Unlawful. 

Sec.  174.  Undue  Discriminations  in  Divisions  of  Joint  Through  Rates 
to  Tap   Lines  or  Logging  Roads. 

Sec.  175.  Grant  of  Wharfage  Privileges  to  One  Shipoer  Denied  to 
Others  Unlawful. 

Sec.  176.  Unlawful  Discriminations  and  Preferemces  in  Transit 
Privileges. 


XX  Federal  Liabilities  of  CVrriees. 

Sec.  177.  Compensation  for  Transit  Privileges  Not  Limited  to  Actual 
Cost. 

Sec.  178.  Extension  of  Transit  Privilege  Over  Twelve  Months  Un- 
reasonable— Exceptions  Permitted. 

Sec.  179.  Carriers  ^lay  Allow  Compensation  to  One  Shipper  for  Trans- 
portation  Services   and  Deny   Same  Privilege   to   Another. 

Sec.  180.  Contracts  Requiring  Expedited  Services  Not  Open  to  All 
Shippers  Invalid. 

Sec.  181.     Preferential  Rates  to  Other  Carriers  as  Shippers  Prohibited. 

Sec.  182.     Foregoing  Rules  Illustrated  and  Applied. 

See.  183.  Storage  Regulations  Must  Be  Enforced  Without  Preference 
or  Discrimination. 

Sec.  184.  Haulage  by  Stage  or  Wagon  from  Destination  Points  not 
a    Dissimilar  Circumstance   Justifying  Lower   Rates. 

Sec.  185.  Preparing  Cars  for  Shipment  of  Commodities  for  Some 
Shippers  and  Refusing  Same  Service  to  Others. 

Sec.  186.  Grain  Elevator  Service  Must  be  Open  to  All  Shippers  With- 
out Preference. 

Sec.  187.  Allowances  When  Owner  of  Elevator  is  Shipper  of  Grain 
— Former  and  Present  Rule. 

Sec.  188.  Allowances  for  Lighterage  Services  to  Shipper  Within  Free 
Delivery  Zone  not  Discriminatory  as  to  Shipper  Beyond 
Zone. 

Sec.  189.  Rebating  Part  of  Freight  Rates  in  Payment  for  Land  for 
Right   of  Way. 

Sec.  190.  Assisting  One  Shipper  to  Collect  Private  Charges  and  Re- 
fusing Same  Service  to  Another. 

Sec.  191.  Discrimination  in  Demanding  Cash  Payment  of  Some  Ship- 
pers and  Extending  Credit  to  Others — Conflicting  De- 
cisions. 

Sec.  192.  Deduction  from  Freight  Rates  to  Pay  Shipper  for  Building 
Tie  Hoist  Invalid. 

Sec.  193.  Difference  in  Rates  on  Freight  Not  Justified  by  Different 
Methods  of  Loading. 

Sec.  194.  Carrier  "Spotting"  Cars  for  One  Shipper  and  Refusing 
Same    Service    to    Another    Similarly    Situated. 

Sec.  195.  Trap  Car  Service  Not  Unlawful  If  Practiced  Without  DL,- 
crimination. 

CHAPTER  X. 

UNLAWFUL  PREFERENCES   IN   RATES   AND   PRACTICES 
BETWEEN  CITIES,  COMMUNITIES   AND   LOCALITIES. 

Sec.  196.  Preferences  Between  Cities  and  Localities  Under  the  Com- 
mon  Law  Not   Forbidden. 

Sec.  197.  Equality  Between  Communities  under  Similar  Circum- 
stances  and    Conditions    Required. 

Sec.  198.  When  Higher  Rates  to  One  Point  Than  to  Another  are  Un- 
justly Discriminatory. 


Tabi.k  of  Contents.  xxi 

Sec.  199.     All    Localities   Entitled   to   Non-Discriminatory    Itates. 

Sec.  200.  Undue  Prejudice  Between  Localities  Resulting  from  Dif- 
ferent   Interstate   and    Intrastate    Rates— Shreveport  Case. 

Sec.  20L  Kvery  City  and  Locality  Entitled  to  Benefit  of  Natural  Ad- 
vantages. 

Sec.  202.  Rates  to  One  Locality  Per  Se  Reasonable,  Unlawful  if 
Another    Locality   is   Prejudiced    Thereby. 

Sec.  203.  Basing  Point  System  of  Rate-Making  Legal  but  Subject 
to  Control  of  Commission. 

Sec.  204.  Discriminations  and  Preferences  Produced  by  Competition 
Between   Localities  not  Undue  or  Unreasonable. 

Sec.  205.  Limitation  Upon  Competition  in  Determining  Whether  Dis- 
crimination   is    Unjust  or  Preference    Undue. 

Sec.  206.  Difference  in  Amount  of  Traffic  Between  Localities  Simi- 
larly Situated  no  Justification  for  Discriminatory  Rates 
and  Fares. 

Sec.  207.  Carrier  not  Guilty  of  Discrimination  Between  Localities 
When  it  Does  not  Participate  in  Rates  to  Favored  Point. 

Sec.  208.  Discrimination  Between  Different  Coal  Fields  Served  by 
Different  Carriers  not  Unlawful. 

Sec.  209.  Discrimination  in  the  Establishment  and  .Maintenance  of 
Group  Rates. 

Sec.  210.  Different  Rates  in  Opposite  Directions  Over  Same  Lines 
Not   Discriminatory. 

Sec.  211.  Discrimination  in  Absorbing  Switching  Charges  at  Ono 
Point  and  Refusing  at  Another. 

Sec.  212.  Discrimination  Through  Joint  Rates  Between  Two  Local- 
ities Similarly  Situated  Prohibited,  When. 

Sec.  213.  Differentials  Between  Atlantic  Coast  Cities  Legitimately 
Based  upon  Competitive  Relations. 

Sec.  214.  Maintaining  Higher  Rates  on  Branch  Line  Parallel  to  Main 
Line  Serving  Same  Territory. 

Sec.  215.  Proportional  Part  of  Through  Rate  Lower  Than  Local  Rates 
Between  Same  Points  Not  Discriminatory. 

Sec.  216.  Rebilling  and  Reshipping  Privilege  at  Nashville  on  Grain 
From  Ohio  River  to  Southeastern  Points  Discriminatory. 

Sec.  217.  Differential  Between  Cities  on  Opposite  Banks  of  Rivers 
Crossed  by   Expensive   Bridges. 

Sec.  218.  Carriers  Unduly  Favoring  Industries  on  Their  Own  Lines 
as  Against  Competitors  on  Other  Lines. 

Sec.  219.  Stopping  Carload  Shipments  at  Points  En  Route  to  Finish 
Loading   Discriminatory,    When. 

CHAPTER  XI. 

UNLAWFUL    PREFERENCE    OR    ADVANTAGE    TO    PARTICULAR 
KINDS   OF    TRAFFIC. 

Sec.  220.  Unreasonable  Preferences  to  any  Particular  Description  of 
TraflSc. 


xxii  Federaij  Liabilities  of  Carriees. 

Sec.  221.  Passage  of  Statute  Prohibiting  Discriminations  Stimulated 
Movement  for  a  More  Uniform  Classification. 

Sec.  222.  Duty  of  Commission  When  Classification  is  Used  to  Effect 
Unjust  Discrimination. 

Sec.  223.  Controlling  Considerations  in  Making  Classifications  of 
Freight. 

Sec.  224.  Discriminations  and  Preferences  in  the  Classification  of 
Commodities. 

Sec.  225.  Differential  Between  Raw  Material  and  Manufactured  Prod- 
ucts— Grain  and  Flour,  Livestock  and  Meats,  Etc. 

Sec.  226.  Differential  between  Carload  and  Less  than  Carload  Rates 
Lawful. 

Sec.  227.  Relation  Between  Carload  and  Less  Than  Carload  Rates 
Must  not  be  Excessive. 

Sec.  228.  Application  of  Carload  Rates  to  Carload  Lots  when  Goods 
Belong  to  Several  Owners. 

Sec.  229.  Wheat  and  Coarse  Grain  Not  "Like  Traffic"  Requiring  Same 
Rate. 

Sec.  230.  Different  Uses  to  which  Commodity  is  Put,  No  Justification 
for  Different  Rates. 

Sec.  231.  Justifiable  Discrimination  Between  Shipments  of  Oil  in 
Barrels  and  in  Tank  Cars. 

Sec.  232.  Relationship  of  Rates  on  Lumber  and  Lumher  Products 
Must  be  Free   From   Discrimination. 

Sec.  233.  Differentials  Between  Similar  Commodities  Justified  by  Dif- 
ferent Conditions  and  Circumstances  Affecting  Transpor- 
tation— Lumber  and  Logs. 

Sec.  234.  Lower  Rates  on  Returned  Shipments  Illegal  Except  When 
Refused  by  Consignees. 

CHAPTER  XII. 

UNJUST    DISCRIMINATION    AND    UNLAWFUL    PREFERENCE    IN 
PASSENGER  SERVICE. 

Sec.  235.  Federal  Statute  Includes  Passenger  as  Well  as  Freight 
Transportation. 

Sec.  236.  Carrying  Personal  Baggage  of  Passengers  Free  Not  Undue 
Discrimination. 

Sec.  237.  Collection  of  Additional  Fare  on  Trains  From  Passengers 
Without  Tickets  not  Unlawful. 

Sec.  238.  Discrimination  Between  White  and  Colored  Passenger  Un- 
lawful. 

Sec.  239.     Lower  Rates  to  Settlers  Unlawful. 

Sec.  240.  Control  of  Commission  over  Preference  in  Mileage,  Excur- 
sion and  Commutation  Passenger  Tickets. 

Sec.  241.  Legality  of  Sale  of  Tickets  for  Number  of  Persons  at  Less 
Rate  Than  for  a  Single  Passenger— Party  Rate  Case. 

Sec.  242.  But  Party  Rate  Tickets  Cannot  be  Limited  to  Particular 
Classes  of  Persons, 


Table  of  Contents.  xxiii 

Sec.  243.     Distinction    Between     Wholesale    Rates    in    Passenger    ajid 

Freight  Traffic. 
Sec.  244.     Regulations   Governing  Commutation   Tickets   Must   Not   be 

Discriminative  Between  Classes  of  Persons. 
Sec.  245.     Discrimination    in    Trans-Continental    Passenger    F'ares    as 

Affecting  Intermediate  Localities. 

CHAPTER  XIII. 

FILING    AND    PUBLICATION    OF    INTERSTATE    RATES,   AND    EF- 
FECT THEREOF. 

Sec.  246.  Publicity  and  Permanency  of  Rates  and  Charges  of  Com- 
mon Carriers  at  Common  Law. 

Sec.  247.  Publication,  Certainty  and  Stability  of  Rates  Necessary  to 
Eliminate    Rebates    and    Discriminations. 

Sec.  248.  The  Act  to  Regulate  Commerce  on  Publicity  of  Rates  and 
Adherence  Thereto. 

Sec.  249.  Purpose  of  Congress  in  the  Passage  of  the  Provisions  of 
Section  6  of  the  Act. 

Sec.  250.  Publication  and  Filing  of  all  Rates,  Fares  and  Charges  for 
Interstate  Transportation  Mandatory. 

Sec.  251.  Necessary  Steps  to  Put  Rates  Legally  in  Force — Posting 
not  Essential. 

Sec.  252.  What  the  Schedules  of  Rates,  Fares  and  Charges  Filed  with 
the  Commission   Must  Contain. 

Sec.  253.  Privileges  or  Facilities  Furnished  Shippers  and  Not  Speci 
fied   in  Tariffs   Unlawful. 

Sec.  254.  Regulations  Concerning  Baggage  of  Interstate  Passengers 
Must  be  Published. 

Sec.  255.  Demurrage  Charges  on  Interstate  Shipments  Must  be  Filed 
with  Commission. 

Sec.  256.  No  Changes  in  Rates,  Fares  and  Charges  Permitted  With- 
out Thirty  Days  Notice  to  the  Commission. 

Sec.  257.  Carriers  Prohibited  from  Departing  to  any  Extent  from 
Published  Schedules  of  Rates  and  Charges  Filed  With 
Commission. 

Sec.  258.  Foregoing  Rule  Equally  Applicable  to  Transit  and  Special 
Services  Provided  in  Tariffs. 

Sec.  259.  Forwarders  are  Shippers  within  Statute  Prohibiting  Re- 
funds from  Published  Rates  and  Charges. 

Sec.  260.  Oral  Contracts  or  Special  Arrangements  for  Interstate  Trans- 
portation  Contravening   Published    Schedules.    Unlawful. 

Sec.  261.  Shippers  and  Passengers  Conclusively  Presumed  to  Have 
Knowledge  of  Published  Schedules  of  Rates,  Fares  an.l 
Charges. 

Sec.  262.  Courts  Bound  by  Published  Rates  and  Charges  Until  Set 
Aside  by  Commission. 

Sec.  263.  Carriers  Must  Collect  the  Scheduled  Rates  and  Charges  for 
Interstate  Transportation. 


xxiv  Fedeeal  Liabilities  of   Carriees. 

Sec.  264.     Illustrative  Cases  Wherein  the  Foregoing  Rule  was  Applied 
and  Enforced. 

Sec.  265.     Defense  of  Estoppel  to  Actions  Against  Shippers  for  Under- 
charges. 

Sec.  266.     Penalty  for  Making  Erroneous  Quotation  of  Rate  When  Ship- 
per is   Damaged  Thereby. 

Sec.  267.     In    Actions    to    Collect    Scheduled    Rates    Counterclaims    for 
Damages  to  Goods  Prohibited. 

Sec.  268.  Damages  Not  Recoverable  for  Failure  to  Post  Rates  at  Sta- 
tions. 

Sec.  269.  Rule  Stated  in  Foregoing  Paragraph  Illustrated  in  Adjudi- 
cated Cases. 

Sec.  270.  Shipper  May  Recover  Damages  for  Collection  of  Rate  in 
Excess  of  that  Fixed  by  Schedule. 

Sec.  271.  Nothing  but  Money  May  be  Lawfully  Received  for  Trans- 
portation of   Either   Passengers   or   Property. 

Sec.  272.  Acceptance  of  Promissory  Notes  in  Payment  for  Freight 
Charges  Unlawful. 

Sec.  273.  Separately  Established  Rates  must  be  Published  in  Absence 
of  Joint  Rates  over  Through  Route. 

Sec.  274.  When  Through  Rate  is  Made  up  of  Sum  of  Locals,  Rates 
in  Effect  on  Date  of  Shipment  Apply. 

Sec.  275.  Departures  from  Published  Tariffs  Permitted  in  Perform- 
ance of  Private  Duties  of  Carriers. 

Sec.  276.  Rates  for  Passage  of  Vehicles  on  Railroad  Ferries  Must  be 
Filed. 

CHAPTER   XIV. 

DAMAGES    OR    REPARATION    FOR    VIOLATIONS    OF    COMMERCE 
ACT— JURISDICTION   OF   COURTS   AND    COM- 
MISSION. 

Sec.  277.  Statutory  Provision  Creating  Civil  Liability  for  Damages 
Due  to  Violation   of  Interstate  Commerce  Act. 

Sec.  278.  Statutory  Authority  of  Commission  and  Courts  to  Award 
Damages  for  Violation  of  Act. 

Sec.  279.  Commission  Without  Authority  to  Award  Damages  Prior 
to  Amendment  of  1889. 

Sec.  280.  Award  of  Damages  by  Commission  for  Unlawful  Discrimina- 
tion— Former  and  Present  Rule. 

Sec.  281.  Authority  of  Commission  to  Award  Damages  Extends  Only 
to  Violations  of  Act  to  Regulate  Commerce. 

Sec.  282.  Conflicting  Provisions  Harmonized  and  Exclusiveness  of 
Remedy  before  Commission,  in  Certain  Cases,  Established. 

Sec.  283.  Courts  Without  Primary  Jurisdiction  to  Award  Damages 
for  Exaction  of  Excessive  Interstate  Rates. 

Sec.  284.  But  Actions  for  Overcharges  Exceeding  Scheduled  Rates 
may  be  Prosecuted  in  Courts  without  Previous  Determina- 
tion of  Commission. 


Table  of  Contents.  xxv 

Sec.  285.     Suits  for  Damages  Recoverable  Under  Section   8  Cannot  be 

Prosecuted  in  State  Courts. 
Sec.  286.     Damages    Caused     by     Unjust    Discrimination,    Preliminary 

Order  of  Commission  Essential,  When. 
Sec.  287.     Original    Jurisdiction    of    State    Courts    to    Award    Damages 

Against    Interstate  Carriers  not  Wholly    Superseded. 
Sec.  288.     In  Actions  for  Damages  for  Violation  of  Statute  Pecuniary 

Loss  Must  be  Shown. 
Sec.  289.     Measure  of  Damages  for  Unreasonable  Rates  and   Unlawful 

Discriminations. 
Sec.  290.     Parties  Entitled  to  Damages  for  Excessive  Freight  Charges 

— Consignors  and  Consignees. 
Sec.  291.     Right    of   Shipper   to   Reparation   When    Arbitrary    Sum    Is 

Added  to  Sale  Price  to  Cover  Excessive  Charges. 
Sec.  292.     Foregoing   Principle   Approved   by   Federal    Supreme   Court 

— Southern  P.  Co.  v.  Darnell-Taenzer  Lumber  Co. 
Sec.  293.     Reparation   on   Past   Shipments  not  Automatically   Awarded 

on   Finding  that  Rate   is   Excessive. 
Sec.  294.     Damages  Growing  out  of  Inadequate  Service  or  Facilities. 
Sec.  295.     Damages    for    Misrouting    Shipments    May    be    Awarded    by 

Commission,  When. 
Sec.  290.     Reparation  Awarded  by  Commission  for  Overcharges  a  Bar 

to  Subsequent  Action  for  Additional   Damages. 
Sec.   297.     Findings  of  Commission  on  Reasonableness  of  Rates  Inure 

to  Benefit  of  Every  Person  Paying  the  Unjust  Rate. 
Sec.  298.     Findings  of  Fact  Required  When  Commission  Awards  Dam- 
ages Against  a  Carrier. 
Sec.  299.     Statute    Prescribing    Findings    and    Orders    of    Commission 

Prima   Facie    Evidence   of    Facts    Therein    Stated,    Consti- 
tutional. 
Sec.  300.     Commission     May     Order    Reparation    without    Prescribing' 

Maximum  Rate  to  be  Observed  in  the  Future. 
Sec.  301.     Actions  to  Enforce  Orders  of  Commission  Awarding   Dam- 
ages may  be  Prosecuted  in  State  as  well  as  Federal  Courts. 
Sec.  302.     Complaints  for  Damages  before  Commission  must  be  Filed 

within  Two  Years. 
Sec.  303.     Assignability   of   Claims   for   Damages  under   the   Interstate 

Commerce  Act. 
Sec.  304.     Allowance   of    Attorney's    Fees    for    Services    in    Reparation 

Cases  Before   Commission   not    Permitted. 

CHAPTER    XV. 

LIABILITIES    FOR   LOSS  AND    DAMAGE    TO    INTERSTATE    SHIP- 
MENTS—CARMACK    AMENDMENT. 

Sec.  305.     Initial   Carriers   Liable   for   Loss   and    Damage   to   Property 

Moving  in  Interstate  Commerce. 
Sec.  30().     Constitutionality  and  Validity  of  the  Carmack  Amendment. 


xxvi  Fedkral  Liabilities  of  Carriees. 

Sec.  307.  Law  Governing  Duties  of  Carriers  for  Loss  or  Damage  to 
Interstate  Shipments  Prior  to  1906. 

Sec.  308.  Purpose  of  Congress  in  the  Enactment  of  the  Carmack 
Amendment. 

Sec.  309.  Stipulations  Exempting  Initial  Carrier  from  Liability  for 
Loss  and  Damage  on  Connecting  Lines  Invalid. 

Sec.  310.  All  State  Laws  and  Rules  Regulating  Liabilities  for  Loss 
and  Damage,  Superseded  as  to  Interstate  Shipments. 

Sec.  311.  Decisions  of  Federal  Courts  Control  in  Construing  Carmack 
Amendment. 

Sec.  312.  State  Courts  may  Enforce  Provisions  of  Carmack  Amend- 
ment and  Award  Damages  Thereunder. 

Sec.  313.  Actions  Brought  in  State  Courts  under  Carmack  Amend- 
ment not  Removable,  When. 

Sec.  314.  Initial  Carrier  may  not  be  Sued  in  Domicile  of  Terminal 
Carrier. 

Sec.  315.  Receipt  from  Shipper  of  Money  Paid  by  Initial  Carrier 
Binding  upon  Connecting  Carrier  in  Absence  if  Fraud. 

Sec.  31G.  Recovery  Against  Initial  Carrier  Bars  an  Action  Against  Con- 
necting  Carriers. 

CHAPTER   XVI. 

THE  CARMACK  AMENDMENT  AS  MODIFIED  BY  FIRST  AND 
SECOND  CUMMINS  AMENDMENTS. 

Sec.  317.  Text  of  the  Carmack  Amendment  as  Modified  by  First  and 
Second  Cummins  Amendments. 

Sec.  318.  Causes  Leading  to  Enactment  of  First  Cummins  Amendment 
— Agreed  Valuation  Clauses  and  Notices  of  Loss. 

Sec.  319.  Effect  of  Second  Amendment  upon  Provisions  of  First  Cum- 
mins Amendment. 

Sec.  320.  Object  and  Purpose  of  Congress  in  Enacting  Second  Cum- 
mins Amendment  of  1916. 

Sec.  321.     Cummins  Amendment  has  no  Retroactive  Effect. 

Sec.  322.  Initial  Carriers  Subject  to  the  Statute  as  Changed  by  Cum- 
mins Amendment. 

Sec.  323.    Interurban  Electric  Railroad  Subject  to  Statute,  When. 

Sec.  324.  Carriers  Liable  for  Full  Actual  Loss,  Damage  or  Injury  to 
Ordinary  Live  Stock. 

Sec.  325.  Limitations  of  Liability  Valid  as  to  Property  Other  Than 
Live   Stock,  When. 

Sec.  326.  Stipulations  as  to  Notice  of  Claims  and  Limitations  upon 
Filing  of  Suits  Now  Regulated  by  Statute. 

Sec.  327.  Statute  not  Applicable  to  Export  and  Import  Shipments  to 
and  from  Countries  not  Adjacent  to  United  States. 


Tai'.lk    of    Contknt.s  xxvii 


CHAPTER   X\^II. 

BASIS,  NATURE  AND  EXTENT  OF  LIABILITY  UNDER  CARMACK 
AMENDMENT  AS  AMENDED. 

Ses.  328.    Liability    Imposed   by   the   Statute   is   that   of   Common    Law 

Doctrines  Governing  Duties  of  Carriers. 
Sec.  329.     Ancient  Common  Law  and  Modern  Exceptions  to  Liabilities 

of  Common  Carriers. 
Sec.  330.    Interstate  Carriers  may  Contract  Against  Loss  by   Fire  not 

Due  to  Negligence. 
Sec.  330a.  Stipulations   Exonerating   Carrier    from    its   Own    Negligence 

Invalid  Though  Filed  with  Commission. 
Sec.  331.     Proviso   Reserving   all    Remedies    under    Existing    Laws    Re- 
lates Solely  to  Remedies  under  Federal  Laws. 
Sec.  332.     Duties   and    Obligations   of    Initial    Carrier   Commence    with 

Delivery   of  Property   for   Transportation. 
Sec.  333.     Effect  of  Failure  or  Refusal  of  Initial  Carrier  to  Issue  Bill 

of  Lading. 
Sec.    334.     Term    "Lawful    Holder"   of   Bill   of   Lading   not   Limited    to 

Owner  of  Property  Transported. 
Sec.  335.     Bill    of    Lading    Issued    by    Initial    Carrier    Governs    Entire 

Transportation — Second   Bill   Void. 
Sec.  336.     Statute  Embraces  Damages  due  to  Delay  as  Well  as  for  Loss 

or  Injury  in  Course  of  Transportation. 
Sec.  337.     Wrongful  Delivery  by  a  Terminal  Carrier  a  "Loss"  Within 

Meaning  of  Statute. 
Sec.  338.     Initial    Carriers    Liable    for    Property    Held    by    Terminal 

Carrier  as  Warehouseman — Conflicting  Decisions. 
Sec.  339.     Nature  of  Carrier's  Liability  as  Warehouseman. 
Sec.  340.     Quantum    of  Proof  Necessary    to   Establish    Liability    under 

Federal  Statute. 
Sec.  341.     Federal  Rule  as  to  Negligent  Delay  Co-operating  with  Act  of 

God  in  Destruction  of  Property. 
Sec.  342.     Connecting   and    Terminal   Carriers    Liable    Under    Carmack 

Amendment  as  Amended,  When. 
Sec.  343.     Connecting   and   Terminal   Carriers   not    Liable   for   Acts   of 

Initial  Carrier. 
Sec.  344.     Presumption  that  Loss  or  Damage  Occurred  on  Line  of  Ter- 
minal Carrier — Contrary  Rulings. 
Sec.  345.     Last  Carrier  not  Liable  in  Absence  of  Proof  of  Damage  on 

its  Line. 
Sec.  346.     Effect  of  Re-routing  or  Change  of  Destination   upon  Liabil- 
ity of  Initial  Carrier. 
Sec.  347.     Carriers  May  Limit  Liability  for  Value  of  Property  at  Time 

and  Place  of  Shipment. 
Sec.  348.     Provisions  of  Shipper's  Contract   with  Initial  Carrier   Inure 

to  Benefit  of  Connecting  Carrier. 


xxviii  Fedeem.  Ijarilities  of  CarriEks. 


CHAPTER  XVIII. 

THE  FEDERAL  BILL  OF  LADING  LAW. 

Sec.  349.     Origin    and    General    Scope    of   tlie   Federal    Bill    of    Lading 

Law. 
Sec.  350.     Constitutionality  and  Validity  of  the  Act. 
Sec.  351.     Leading  Provisions  of  Act— Rule  in  Friedlander  v.  Texas  & 
Pacific  R.   Co.,  Modified. 

CHAPTER  XIX. 

THE    INTERSTATE    COMMERCE    COMMISSION— ITS    NATURE, 
FUNCTIONS,  POWERS  AND  DUTIES. 

Sec.  352.     Necessity    of    a    National    Commission    to    Enforce    Federal 

Legislation  Regulating  Railroads. 
Sec.  353.     Statutory    Provision     Creating     the     Interstate     Commerc3 
Commission. 

Sec.  354.     Amendments  of  1906   and   1917   Increasing  Membership   and 
Salaries  of  the  Commissioners. 

Sec.  355.     Commission     an     Administrative     Body     Exercising     Quasi 
Judicial  Functions. 

Sec.  356.     General    Statement    of    Powers    and    Duties    of    Commission 
over  Interstate  Carriers. 

Sec.  357.     Commission  Authorized  to  Divide  its  Members  into  Divisions. 

Sec.  358.     Three    Divisions    of    Commission    Established    Pursuant    to 
Foregoing   Amendment. 

Sec.  359.     Limitation   upon    Powers   of   Commission   in    Regulating   In- 
terstate Carriers  and  Transportation. 

Sec.  360.     Commission   Without   Authority   to   Compel   Carriers   to  Ac- 
quire and  Furnish  Special  Kind  of  Cars. 

Sec.  361.     Duty   to  Furnish  Cars  for   Interstate   Shipments  a   Judicial 
Question  for  Courts  and  not  Administrative  in  Character. 

Sec.  362.     Maximum  Rates  and  Charges  for  Interstate  Transportation 
may  be  Prescribed  by  Commission. 

Sec.  363.     Proposed  Advances  in  Rates  may  be  Suspended  by  Commis- 
sion Pending  Investigation  of  Propriety. 

Sec.  364.     Amendment  of   1917   Prohibiting  Filing  of   Increased    Rates 
without  Approval  of  Commission. 

Sec.  365.     Rules  of  Carriers  Governing  Distribution,   Exchange,   Inter- 
change and  Return  of  Cars. 

Sec.  366.     Statute    Compelling   Carriers   to    Establish   Through    Routes 
and  Joint  Rates  upon  Order  of  Commission,  Valid. 

Sec.    367.     Powers  of,  and  Limitations  Upon,  Commission  in  Establish- 
ing Through  Routes  and  Joint  Rates. 

Sec.  368.     When  Commission  may  Establish  Through  Routes  and  Max- 
imum Joint  Rates  between  Rail  and  Water  Lines. 

Sec.  369.     Jurisdiction    of   Commission    in    Connection    with   Transpor- 
tation to  Adjacent  Foreign  Countries. 


Table  of  Contents.  xxix 

Sec.  370.     Commission    may    not    Compel    a    Carrier    to    Rer-elve    and 

Switch  Carload  Freight  to  Industries  on  Its  Terminals. 
Sec.  371.     Commission    may    Authorize    Carriers    to    Charge    Less    for 

Longer  than  for  Shorter  Distance. 
Sec.  372.     Commission  may  Authorize  Rail  Carriers  to  Continue  Own- 
ership of  Water  Lines. 
Sec.  373.     Commission   may   Prescribe   the   Forms   of  all    Schedules   of 

Rates  and  Charges. 
Sec.  374.     Charges  by  Shippers  against  Carriers  for  Services  Connected 

with  Transportation  under  Control  of  Commission. 
Sec.  375.     Commission   may  Formulate  Regulations  for  the  Transpor- 
tation of  Explosives. 
Sec.  376.     Switch    Connections    may    be    Ordered    by    the    Commission, 

When. 
Sec.  377.     Forms  of  all  Accounts,  Records  and  Memoranda  of  Carriers 

Subject  to  Control  of  Commission. 
Sec.  378.     Power    of    Commission    over    Rail    Carriers    Discriminating 

against  Steamship  Lines  to  Foreign  Countries. 
Sec.  379.     Rail  Rates  Reduced  to  Meet  Water  Competition  may  not  be 

Raised  without  Permission  of  Commission. 
Sec.  380.     Physical  Connection  between  Line  of  Rail  Carriers  and  Water 

Carriers  may  be  Established   by  Commission. 
Sec.  381.     Maximum   Proportional    Rates   by   Rail   to  and    From   Ports 

may  be  Established  by  Commission,   When. 
Sec.   382.     Commission    Without    Jurisdiction   to    Regulate   Charges    in 

Connection  with  28-Hour  Livestock  Law. 
Sec.  383.     Commission  Required  to  Make  Annual  Reports  to  Congress. 
Sec.  384.     Rules  and  Regulations  for  Inspection  of  Locomotive  Boilers 

Controlled  by   Commission. 
Sec.  385.     Carriers  Required  to  Make  Monthly  Reports  of  all  Accidents 

to   Commission. 
Sec.  386.     Commission  May  Require  Annual  Reports  from  all  Common 

Carriers  Subject  to  Statute. 
Sec.  387.     Power   of  Commission   over   Safety   Appliances   on    Railroad 

Cars  and  Engines. 
Sec.  388.     Commission    Empowered    to    Investigate   Railroad    Accidents 
to  Make  Reports. 

CHAPTER   XX. 

PROCEDURE   BEFORE   INTERSTATE   COMMERCE   COMMISSION. 

Sec.  389.     Who  May  Make  Complaints  to  the  Commission. 

Sec.  390.     Absence  of  Direct  Damage  to  Complainant  not  Ground   foi 

Dismissal   of  Complaint. 
Sec.  391.     Power    of    Commission    to    Proceed    when    Acting    upon    its 

Own  Motion. 
Sec.  392.     Power  of  Commission  to  Formulate  Rules  of  Procedure. 
Sec.  393.     Rules  Governing  Complaints  Filed  Before  Commission. 
Sec.  394.     Essentials  of  Complaints  When  Reparation  is  Sought. 


XXX  Federal.  Liabilities  of  Carriers. 

Sec.  395.  Formal  Claims  for  Reparation  Based  upon  Findings  of  Com- 
mission. 

Sec.  396.  Specifications  of  Complaints,  Answers,  Briefs,  Petitions,  Ap- 
plications, etc. 

Sec.  397.     Applications  to  Carriers  Under   Fourth   Section. 

Sec.  398.     Suspensions  of  Tariff  Schedules  under  Section  1.5. 

Sec.  399.  Requirements  of  the  Rules  at  to  Answers  Filed  Before  Com- 
mission. 

Sec.  400.     Method  of  Serving  Papers. 

Sec.  401.  Amendments  to  Complaints  or  Answers  in  Proceedings  Be- 
fore Commission. 

Sec.  402.  Commission  May  Order  Testimony  to  be  Taken  by  Deposi- 
tion at  any  Stage  of  Proceedings. 

Sec.  403.     Method   of  Hearing  Before  the  Commission. 

Sec.  404.  May  Hold  Hearings  or  Prosecute  Inquiries  Anywhere  in  the 
LTnited  States. 

Sec.  405.     Continuances,  Extensions  of  Time  and  Stipulations. 

Sec.  406.  Commission  may  Compel  Attendance  and  Testimony  of  Wit- 
nesses and  Production  of  Papers. 

Sec.  407.  Schedules,  Contracts  and  Annual  Reports  Filed  with  Com- 
mission— Public  Records  Receivable  as  Prima  Facie  Evi- 
dence, When. 

Sec.  408.  Transcripts  of  Testimony  to  be  Furnished  Complainant  and 
Defendant. 

Sec.  409.     Rules   Governing  Filing  of   Briefs. 

Sec.  410.  Orders  of  the  Commission — Enforcement,  Service  of,  and 
Duties  of  Carriers  Thereunder. 

Sec.  411.  Applications  for  Rehearing  or  Reopening  before  the  Com- 
mission— Procedure. 

Sec.  412.     Employment  of  Attorneys  to  Aid  Commission  Authorized. 


Part  Three 


PERSONAL  INJURIES  TO  INTERSTATE  EMPLOYES  OF  COMMON 

CARRIERS, 

The  Federal  Employers'  Liability  Act. 

CHAPTER  XXI. 

SCOPE,  PURPOSE,  VALIDITY  AND  EFFECT  OF  FEDERAL 
LIABILITY  ACT. 

Sec.  413.     Source,  Nature  and  Extent  of  Power  of  Congress  to  Regu- 
late Relation  of  Master  and  Servant. 
Sec.  414.     Employers'  Liability  Act  of  1906    Invalid. 
Sec.  415.     Second    Federal   Employers'    Liability   Act   Valid. 
Sec.  416.     Scope  of  the  Federal  Employers'  Liability  Act. 


Tai'.lk  of  (Vjntknts.  xxxi 

Sec.  417.  Purpose  of  ConKress  in  Enactment  of  Federal  Act — Uniform- 
ity and   Modification   of  Common  Law   Rules. 

Sec.  418.     Defects  in  Act  of  1908  and  Amendments  of  1910. 

Sec.  419.  Congressional  Purpose  in  the  Enactment  of  the  Amendments 
of  1910. 

Sec.  420.  Extent  of  Power  Exercised  by  Congress  In  Passing  the 
Liability  Act. 

Sec.  421.  Exclusiveness  of  the  Federal  Act  and  its  Effect  upon  State 
Laws. 

Sec.  422.  State  Workmen's  Compensation  Laws  Superseded  by  Fed- 
eral Act  as  to  Injuries  Arising  in  Interstate  Commerce. 

Sec.  423.  Common  Law  Right  of  Parents  to  Recover  for  Loss  of  Serv- 
ice of  Minor  Employe   Injured,   Superseded. 

Sec.  424.  Remedy  Provided  by  Statute  Limited  to  Employes  Only  of 
Common  Carriers  by  Railroad. 

Sec.  425.  Employes  on  Ocean-going  Ships  Owned  by  Common  Carriers 
by  Railroads  not  Included. 

Sec.  42G.     Decisions    of   National    Courts    Construing    Act    Control. 

Sec.   427.     Laws  of  State  Control  as  to  Procedure. 

Sec.  428.  Fellow  Servant  Rule  Abolished  as  to  all  Interstate  Em- 
ployes. 

CHAPTER  XXII. 

CARRIERS   SUBJECT  TO   LIABILITY  ACT. 
Sec.  429.     General  Rule  as  to  When  Railroad  Companies  are  Engaged 

in  Interstate  and  Foreign  Commerce. 
Sec.  430.     Railroads  Within  the  Act  Defined — Spur  Tracks. 
Sec.  431.     Railroad  Must  be  a  Common  Carrier — Tap  Lines  and  Logging 

Roads. 
Sec.  432.     Carriers    Owning    and    Operating    Lines    Wholly    Within    a 

Single  State  Subject  to  Federal  Act,  When. 
Sec.  433.     Railroad  Carriers  Engaged  in  Foreign  Commerce  Subject  to 

the  Statute. 
Sec.  434.     Lessor  of  Railroad  Engaged  in  Interstate  Commerce  Liable, 

When. 
Sec.  435.     Interurban   Electric  Railroads  Included   Within   the   Act. 
Sec.  436.     Railroads   Carrying  Passengers  and  no   Freight. 
Sec.  437.     Ships  or  Vessels  not  a  Part  of  a  Railroad  System. 
Sec.  438.     Street  Railroads  not  Within  the  Terms  of  the  National  Act. 
Sec.  439.     Receivers  of  Railroad  Corporations  Included  Within  the  Act. 
Sec.  440.     Sleeping  Car  Companies  not  Common  Carriers  by  Railroad. 
Sec.  441.     Express  Companies  not  Common  Carriers  by  Railroad  Under 

Federal  Act. 
Sec.  442.     All    Carriers    by    Railroad    and    all    their    Employes    Within 

Territories  Included. 
Sec.    443.     Beginning  and  Ending  of  Interstate  Character  of  Shipments. 
Sec.  444.     Hauling  Empty  Cars  or  Company  Property  over  State  Line. 
Sec.  445.     Transportation   from    Point  to   Point  in   One   State   Passing 

Through   Another  State  in  Transit. 


xxxii  Federal  Liabilities  of  Carriees. 

Sec.  446.  When  Reshipment  from  Point  of  Delivery  Changes  Inter- 
state Character  of  Traffic. 

Sec.  447.  When  Reshipment  from  Point  of  Delivery  Does  not  Change 
Interstate  Character  of  Traffic. 

Sec.  448.  Proof  that  Injured  Servant  Is  Employed  in  Interstate  Com- 
merce Sufficient  to  show  that  the  Railroad  is  so  Engaged. 

CHAPTER  XXIII. 

EMPLOYES   ENGAGED    IN    INTERSTATE    COMMERCE— GENERAL 

PRINCIPLES. 

Sec.  449.  Statute  Includes  Only  Employes  Injured  While  Engaged  in 
Interstate   Commerce. 

Sec.  450.  Employment  in  Interstate  Commerce  not  Restricted  or  Lim- 
ited to  Actual  Transportation  from  One  State  to  Another. 

Sec.  451.  Same  Act  May  Constitute  Interstate  Employment  in  One 
Relation  and  not  in  Another. 

Sec.  452.  Criterion  Adopted  by  United  States  Supreme  Court  in  De- 
termining  Employment    in    Interstate  Commerce. 

Sec.  453.     Employes  Presumed  to  be  Engaged  in  Intrastate  Commerce. 

Sec.  454.  Prior  or  Subsequent  Employment  Immaterial  in  Determin- 
ing Applicability  of  Federal  Statute. 

Sec.  455.  Servants  Employed  in  Both  Intrastate  and  Interstate  Com- 
merce. 

Sec.  456.  Employes  on  Premises  of  Railroad  Company  Going  to  or 
from  Work. 

Sec.  457.  Status  of  Employes  Injured  While  Going  to  or  from  Day's 
Work  Partly  in  Interstate  and  Partly  in  State  Commerce. 

Sec.  458.  Employer  not  Liable  to  Employe  Injured  After  Day's  Work 
is  Over — Sleeping  in   Cars. 

Sec.  459.  Effect  of  Temporary  Cessation  in  or  Abandonment  of  Work 
in   Interstate  Commerce. 

Sec.  460.  Employes  of  Private  Carriers  Transporting  their  Own  Prop- 
erty not  Subject  to  Statute. 

Sec.  461.  When  Questions  of  Employment  in  Interstate  Commerce 
should  be  Submitted  to  Jury. 

Sec.  462.  Decisions  Construing  Federal  Safety  Appliance  Act  not 
always  Applicable  in  Construing  Employers'  Liability  Act. 

Sec.  463.  Instances  where  Employes  were  Engaged  in  Interstate  Com- 
merce but  Erroneously  Held  to  Have  Been  Engaged  in  In- 
trastate Commerce. 

Sec.  464.  Instances  Where  Employes  Were  Engaged  Exclusively  in 
Intrastate  Commerce  but  Erroneously  Held  to  have  been 
Engaged    in    Interstate    Commerce. 

Sec.  465.  Burden  of  Proving  Interstate  Employment  is  Upon  the 
Plaintiff. 

Sec.  466.  Burden  of  Proving  Interstate  Employment  upon  Defend- 
ant, When. 


Tablk  of  Contents.  xxxiii 


CHAPTER  XXIV. 
EMPLOYES   ENGAGED   IN   CONSTRUCTION    AND   REPAIR   WORK. 

Sec.  467.     Employes  Engaged   in  Construction  of  Instrumentalities  for 
Future  Use  in   Intfrstate  Commerce. 

Sec.  468.     Distinction    between    Original    Construction    Work    and    Re- 
pair or  Maintenance  of  Interstate  Highways  by  Rail. 

Sec.  469.     Bridge    Workers    and    Carpenters    Employed    in    Interstate 
Commerce,  When. 

Sec.  470.     Far  Reaching  Effect  of  Pedersen  Case  in  Extending  National 
Control  over  Railroad  Employes. 

Sec.  471.     Erecting    Foundation    for    New    Bridges   under    Old    Bridges 
Forming  Parts  of  Interstate  Lines. 

Sec.  472.     Removing  Bolts  from  Timbers  after  Having  Been  Taken  Out 
of  Interstate  Bridges. 

Sec.  473.     Repairing  Tracks  of  Interstate   Carriers — Section   men   and 
Track  Laborers. 

Sec.  474.     Status  of  Laborers  Repairing  Side  Tracks,  Spur  Tracks  and 
Switches. 

Sec.  475.     Maintenance  and  Repair  of  Turntables  on   Interstate  Rail- 
roads. 

Sec.  476.     Clearing    Debris    from    Interstate    Lines    after    Wrecks    and 
Constructing  Temporary  Tracks. 

Sec.  477.     Employes   Surveying  Track   to   Improve  Condition   of  Road- 
bed. 

Sec.  478.     Employes  Handling  Rails  on  Tracks  of  Interstate  Carriers. 

Sec.  479.     Picking  up  Old  Rails  and  Storing  New  Ones  Along  Track  for 
Future  Use. 

Sec.  480.     When  Laborers  Handling  Ties  for  Common  Carriers  are  Un- 
der the  Federal  Act. 

Sec.  481.     Employes    Handling    Ballast,    Gravel,    Sand,    Etc..    for    Use 
in  Repairing  Interstate  Tracks. 

Sec.  482.     Excavating  and   Deepening   Ditches   Along   Railroad   Tracks 
for    I^rainage    Purposes. 

Sec.  483.     Repairing   or   Rebuilding   Depots,    Roundhouses,    Sheds,    etr. 
not    Employment    in    Interstate    Commerce. 

Sec.  484.     Employes   Working  in   Machine   and    Repair   Shops,    Round- 
houses and  Other  Like  Buildings. 

Sec.  485.     Earlier  Decisions  Overruled  by  Rulings  of  National  Supreme 
Court  Cited  in  Two  Foregoing  Paragraphs. 

Sec.  486.     When   Car    and    Engine   Repairers   are    Employed    in    Inter- 
state Commerce. 

Sec.  487.     Employes  Repairing  Engines  and   Cars  in  Transit   or   Tem- 
porarily  Delayed. 

Sec.  488.     Statutes    of    Shopmen    Repairing    Empty    Cars    in    Terminal 

Yards  and  Engines  in  Roundhouses. 
Sec.  489.     Subsequent    Cases    Applying    the    Doctrine    of    the    Winters 
Case  to  Car  and  Engine  Repairers. 

1  Control  Carriers  C 


xxxiv  Federal  Ll^bilities  of  Carriees. 

Sec.  490.  Differentiating  Factors  Between  Rulings  in  Winters  and 
Pedersen   Cases. 

Sec.  491.  Illustrative  Cases  in  which  Car  and  Engine  Repairers  were 
not  Employed  in  Interstate  Commerce. 

Sec.  492.  Repairing  Cars  and  Engines  Used  Exclusively  in  Interstate 
Commerce. 

Sec.  493.  Interstate  Status  of  Employes  Painting  Instrumentalities 
of  Commerce  Among  the  States. 

Sec.  494.  Linemen  Repairing  Telegraph  and  Telephone  Lines  of  Inter- 
state Carriers. 

CHAPTER  XXV. 
INTERSTATE   STATUS   OF   TRAIN   AND   SWITCHING   CREWS. 

Sec.  495.  Train  Men  on  Interstate  Trains  are  Employed  in  Interstate 
Commerce. 

Sec.  496.     When  Trainmen  are  not  Engaged  in  Interstate  Commerce. 

Sec.  497.     Employes   Preparing  Interstate   Trains   for   Movement. 

Sec.  498.  Beginning  and  Termination  of  Federal  Control  over  Crews 
on  Trains  Carrying  Interstate  Commerce. 

Sec.  499.  Interstate  Employment  of  Train  Crews  on  Return  Trip 
not  Shown  by  Proof  that  Train  on  Outgoing  Trip  Carried 
Interstate  Freight. 

Sec.  500.  Train  and  Switching  Crews  "Making  Up"  and  "Breaking  Up" 
Interstate  Trains  in  Railroad  Yards. 

Sec.  501.  Switching  Cars  Containing  Intrastate  Shipments  into  or  out 
of  Interstate  Trains — Early  Conflicting  Rulings. 

Sec.  502.  Status  of  Such  Employes  Finally  Held  to  be  Under  Federal 
Control. 

Sec.  503.  Test  in  Determining  when  Switching  Crews  are  Employed  in 
Interstate   Commerce. 

Sec.  504.  Doctrine  of  Behrens  Case  as  to  Interstate  Status  of  Switch- 
ing Crews   Reaffirmed   and   Applied. 

Sec.  505.  Exceptions  to  Rule  that  Switching  Crews  Moving  Intra- 
state Cars  Exclusively  are  Governed  by  State  Law. 

Sec.  506.  Switching  Movements  of  Empty  Cars  in  Railroad  Yards  to 
be  Loaded  with  Interstate  Freight. 

Sec.  507.  Weighing  of  Cars  containing  Interstate  Freight  after  Un- 
loading to  Determine  Weight  of  Contents. 

Sec.  508.  Switching  Movement  of  Cars  After  Termination  of  Inter- 
state Journey  or  After  Receipt  by  Consignee. 

Sec.  509.  Switching  Cars  Loaded  with  Interstate  Freight  for  Re- 
pairs. 

Sec.  510.  Local  Movement  of  Cars  in  Yard  Between  Completion  of 
one    Interstate    Trip    and    Commencement    of    Another. 

Sec.  511.  Exceptions  to  Rule  that  Delivery  of  Cars  at  Destination 
ends  its   Interstate   Status. 

Sec.  512.  Switching  Movement  of  Car  of  Lumber  to  be  Used  in  Re- 
pairing the  Building  Cars  Used  in  Interstate  Commerce. 


Tahlf.  of  Contents.  xxxv 

Sec.  513.  Employes  Making  up  Train  of  Another  Company  for  an  In- 
state  Run   over  the   Latter's  Track. 

Sec.  514.  Illustrative  Cases  Showing  Employment  of  Switching  Cre-vs 
In  Interstate  Commerce. 

CHAPTER   XXVI. 
INTERSTATE  STATUS  OF  MISCELLANEOUS  EMPLOYES. 

Sec.  515.  Employes  Procuring  Supplies  and  Materials  to  be  Used  on 
Interstate  Trains. 

Sec.  516.  Supplying  and  Moving  Coal  for  Use  of  Engines  Pulling  Inter- 
state Trains. 

Sec.  517.  Status  of  Employes  Dumping  Coal  from  Chutes  into  Tenders 
of  Interstate  Engines. 

Sec.  518.  Loading  and  Unloading  Freight  from  Interstate  Trains  Con- 
stitutes Work  in  Interstate  Commerce. 

Sec.  519.  Status  of  Watchmen,  Detectives  and  other  Employes  doing 
Police  Duties. 

Sec.  520.    Yard  Clerks   Engaged  in   Interstate  Commerce,  When. 

Sec.  521.  Servants  of  Railroad  Companies  Handling  United  States 
Mail  in  Connection  with  Interstate  Trains. 

Sec.  522.     Agents    of    Express    Companies. 

Sec.  523.  Interstate  Status  of  Express  Messengers  Employed  Jointly 
by  Railroad  and  Express  Companies. 

Sec.  524.     Pullman   Employes. 

Sec.  525.     Miscellaneous  Employes. 

CHAPTER  XXVII. 
NEGLIGENCE  UNDER  FEDERAL  ACT. 

Sec.  526.     The  Statutory  Provision. 

Sec.  527.     Tw^o  Branches  of  Negligence  Under  First  Section. 

Sec.  528.  Negligence  Criterion  of  Liability  of  Carrier  Under  National 
Statute. 

Sec.  529.  Negligence  need  not  be  Proven  when  Violation  of  Safety  Ap- 
pliance Act  is  Cause  of  Injury. 

Sec.  530.  Negligence  of  Human  Agencies  Not  Limited  to  Fellow  Serv- 
ants as  Construed  under  Common  Law. 

Sec.  531.  Negligence  of  Common  Carrier  Need  Not  be  Shown  by 
Direct   or   Positive   Proof. 

Sec.  532.     Judicial   Definition   of  Negligence. 

Sec.  533.  Carrier  not  Required  to  Furnish  Latest,  Best  and  Safest 
Appliances  for  Interstate  Employes. 

Sec.  534.  Custom  or  Practice  of  Other  Railroads  not  Conclusive  in 
Determining  Exercise  of  Ordinary  Care. 

Sec.  535.  Decisions  of  National  Courts  Control  in  Determining  Neg- 
ligence— Contrary   Rulings. 

Sec.  536.  Conflicting  Rulings  Finally  Eliminated  by  Controlling  De- 
cisions of  National  Supreme  Court. 

Sec.  537.  Negligent  Act  Must  have  been  Committed  while  Employe 
was  Acting  within  Scope  of  Employment. 


xxxvi  Fedekal  Ll\bilities  of  Carkiees. 

Sec.   538.     Negligence  Must  be  Proximate  Cause  of  Injury. 

Sec.  539.     :Meaning  of  the  Phrase  "In  Whole  or  in  Part." 

Sec.  540.  State  Statutes  Creating  Presumption  of  Negligence  from  In- 
jury Inapplicable  to  Interstate  Employes. 

Sec.  541.  Mississippi  "Prima  Facie"  Statute  Held  Applicable  to  Actions 
under  Federal  Act. 

Sec.  542.  Sufficiency  of  Evidence  of  Negligence  to  Submit  Cause  to 
Jury  not  Governed  by  Decisions  of  State  Courts. 

Sec.  543.  Effect  of  State  Law  Prohibiting  Employment  of  Minors  in 
Determining   Negligence. 

Sec.  544.  Applicability  of  Rule  of  Res  Ipsa  Loquitur  to  Actions  under 
Federal  Act — Conflicting  Rulings. 

Sec.  545.  Recovery  Cannot  be  Defeated  When  Defendant's  Negligence 
is  Part  of  Causation. 

Sec.  546.  Casualties  Due  to  Sole  Negligence  of  Employe,  no  Recovery 
under  Federal  Act. 

Sec.  547.     Foregoing  Principle  Further  Illustrated  and  Applied. 

Sec.  548.  Cases  Under  Federal  Act  in  Which  the  Facts  were  Held  to 
Show  Actionable  Negligence. 

Sec.  549.  Cases  Under  Federal  Act  in  Which  the  Facts  were  Held  not 
to   Show  Actionable  Negligence. 

Sec.  550.  Statute  Covers  Acts  of  Intrastate  Employes  and  Defects  in 
Instrumentalities  Used  Solely  in  Intrastate  Commerce. 

Sec.  551.  Intrastate  Employes  Injured  by  Negligence  of  Interstate  Em- 
ployes or  Instrumentalities  of  Interstate  Commerce  have 
no  Remedy  under  Federal  Act. 

Sec.  552.     Willful  Wrongs  not  Within  Terms  of  Act. 

CHAPTER  XXVIII. 
ASSUMPTION    OF   RISK    UNDER    LIABILITY   ACT. 

Sec.  553.     The    Statutory    Provision. 

Sec.  554.     Assumption  of  Risk  a  Defense  under  the  Federal  Act. 

Sec.  555.     Doctrine    of    Horton    Case   Reexamined    and   Reaffirmed    by 

National  Supreme  Court. 
Sec.    556.     Effect    of    State    Constitutions    and    Statutes    Abolishing    or 

Modifying  Assumption  of  Risk  on  Interstate  Employes. 
Sec.  557.     Decisions  of  Federal  Courts  Control  in  Determining  When 

Employe  Assumes   Risk. 
Sec.  558.     Ordinary  Risks  and  Known  or  Obvious  Extraordinary  Risks 

Assumed  by  Interstate  Employees. 
Sec.  559.     Exception  to  Rule  that  Servant  Assumes  Obvious  or  Known 

Risk — Promises  of  Repair. 
Sec.  560.     When  Assumption  of  Risk  is  a  Defense  to  Negligent  Acts 

of  Fellow  Servants. 
Sec.  561.     Analysis    of    Federal    Decisions    Applying    Doctrine    of   As- 
sumption of  Risk  to  Interstate  Employes  of  Railroads. 
Sec.  562.     Distinction   Between  Assumption   of  Risk   and  Contributory 

Negligence. 


I'vuLK  OF  Contents.  xxxvii 

Sec.  563.     When  Assumption  of  Risk  is  not  a  Defense — Federal  Safety 

Appliance  Laws. 
Sec.  5G4.     State  Statutes  for  Safety  of  Employes  not  Inchided. 
Sec.  565.     Assumption  of  Risk   Elliminated  in  Actions  for  Violation  of 

Hours  of  Service  Act. 
Sec.  566.     Confusing  Assumption  of  liisk  with  Contributory  Negligence 

in  Jury  Instructions  under  Federal  Act. 
Sec.  567.     When  Assumption  of  Risk   is  no   Defense  When   there  is  a 

Plurality  of  Causes. 
Sec.  568.     Violations  of  Rules  not  Assumption  of  Risk. 
Sec.  509.     Concrete  Instruction  must  be  Given,  if  Requested. 
Sec.    570.     Failure  to  Instruct  on  Assumption  of  Risk  not  Error  When 

Defendant  has  not  been   Prejudiced  Thereby. 
Sec.  571.     Burden  of  Proving  Assumption  of  Risk  upon  Defendant. 
Sec.  572.     Defense    of    Assumption    of    Risk    Must    be    Pleaded    to    be 

Available. 
Sec.  573.     Cases    in    Which    Interstate    Employes    were    Held    to    have 

Assumed  the  Risk. 
Sec.  574.     Cases  in  Which  Interstate  Employes  were  Held  not  to  have 

Assumed  the  Risk. 

CHAPTER  XXIX. 
CONTRIBUTORY    NEGLIGENCE    UNDER    LIABILITY    ACT. 

Sec.  575.     The  Statutory  Provision. 

Sec.  576.     Contributory  Negligence  Defined. 

Sec.    577.     Right  of  Recovery   under  Federal  Act   not  Barred  by   Con- 
tributory Negligence. 

Sec.  578.     Two  Theories  of  Comparative  Negligence  Extant  in  United 
States. 

Sec.  579.     Purpose    of   Congress    in    Modifying   Common   Law    Rule   of 
Contributory   Negligence. 

Sec.  580.     Apportionment  of  Damages  under  Federal  Act  Different  from 
Georgia   Statute. 

Sec.  581.     Employe's  Contributory  Negligence  to  Reduce  Damages  must 
Proximately  Contribute  to  Injury. 

Sec.  582.     Gross  Negligence  of  Plaintiff  and   Slight  Negligence  of   De- 
fendant Cannot  Defeat  Recovery. 

Sec.  583.     When  Defendant's  Act  is  no  Part  of  Causation,  Plaintiff  Can- 
not Recover. 

Sec.  584.     How  Damages  Apportioned  When  Employe  is  Guilty  of  Con- 
tributory Negligence. 

Sec.  585.     When  Duty  of  Trial  Court  to  Instruct  on  Contributory  Neg- 
ligence Arises  under  Federal  Act. 

Sec.  586.     Method  of  Instructing  the  Jury  When  there  is  Evidence  of 
Contriliutory  Negligence. 

Sec.  587.     Instruction  on  Contributory  Negligence  in  Language  of  Stat 
ute  not  Erroneous. 

Sec.  588.     Erroneous  Instructions  on  Contributory  Negligence  Under  ihe 
Federal  Act. 


xxxviii  Fedkkal  Liawlities  of  Carrieks. 

Sec.  589.  When  Contributory  Negligence  of  Employe  Does  not  Dimin- 
ish Damages— Federal  Safety  Appliance  Laws. 

Sec.  590.  Burden  is  Upon  Defendant  to  Prove  Contributory  Negli- 
gence. 

Sec.  591.  Whether  Contributory  Negligence  Must  be  Pleaded,  Deter- 
mined by  State  Law. 

Sec.  592.  Evidence  of  Contributory  Negligence  Admissible  Under  Gen- 
eral Denial,  When. 

CHAPTER  XXX. 

BENEFICIARIES  UNDER  LIABILITY  ACT. 

Sec.  593.     Beneficiaries  under  the  Federal  Statute. 

Sec.  594.  Parents  not  Entitled  to  Damages  when  there  is  a  Widow 
or    Children. 

Sec.  595.  Alien  Dependents  Residing  Abroad  may  Recover  under 
Federal  Act. 

Sec.  596.     Existence  of  Beneficiaries  Named   in  Statute  .Jurisdictional. 

Sec.  597.  Who  are  "Next  of  Kin"  under  Federal  Act  must  be  De- 
termined by  State  Law. 

Sec.  598.  Illegitimate  Children  may  be  Next  of  Kin  within  Meaning 
of  Federal  Statute. 


VOLUME  II. 


Part    Three— Continued, 
chapter  xxxi. 

DAMAGES  IN  DEATH  CASES  UNDER  LIABILITY  ACT. 

Sec.  599.     The  Statute. 

Sec.  600.  No  recovery  under  Federal  Act  unless  Relatives  Named  in 
Statute  Suffer  Pecuniary  Loss. 

Sec.  601.  If  Injured  Employe  Lives  an  Appreciable  Length  of  Time, 
Beneficiaries  May  Also  Recover  Under  1910  Amendment. 

Sec.  602.  Damages  Under  Section  9  Limited  to  Loss  and  Suffering 
While   Deceased  Employe  Lived. 

Sec.  603.  Loss  of  Future  Earnings  of  Decedent  not  Included  in  Dam- 
ages Due  Beneficiaries  Under  Section  9. 

Sec.  G04.  No  Recovery  for  Pain  and  Suffering  of  Deceased  by  Bene- 
ficiaries Prior  to  1910  Amendment. 

Sec.  605.  No  Recovery  of  Damages  under  Section  9  when  Death  of 
Employe  is  Instantaneous. 

Sec.  606.  Death  Must  be  Result  of  Negligence  before  Beneflciaaes 
can  Recover  under  Section  1,  but  not  under  Section  9. 

Sec.  607.  Decisions  of  National  Courts  on  Measure  of  Damages  Con- 
trol. 

Sec.  608.  Measure  of  Damages  in  Cases  of  Death  under  Section  One  of 
the  Federal  Act. 


TAm.F.  OF  Contents.  xxxix 

Sec.  609.     Damages  Due  Beneficiaries  for  Loss  of  Future  Benefits  Lim- 
ited to  Present  Cash  Value. 

Sec.  610.     Subsequent  Application  of  Doctrine  of  Kelly  Case  in  State 
Courts. 

Sec.  fill.    Statutory  Action  is  not  for  the  p:qual  Benefit  of  each  of  the 
Surviving  Beneficiaries. 

Sec.  012.     Pecuniary  Loss  not  Dependent  upon  any  Legal  Liability  of 
the  Employe  to  the  Beneficiaries. 

Sec.  613.     Distribution    of   Amount    Recovered    Controlled    by    Federal 
Statute  and  not  State  Laws. 

Sec.  614.     Method   of  Apportioning    Fund  Among  Beneficiaries  upon  a 
Lump  Sum   Settlement. 

Sec.  615.     No  Presumption   of  Damage  to  Widow  and  Child. 

Sec.   616.   Effect  of  Abandonment  by  Husband  on  Right  of  Widow  and 
Child  to  Recover. 

Sec.  617.     Loss  of  Society,  Companionship  and  Wounded  Affections  not 
Elements   of  Damages. 

Sec.  filS.     Loss   of  Care,   Counsel,   Trainin.!^-   and   Education    cf  Minors 
Proper   Elements   of  Daniages. 

Sec.  619.     Damages  for  the  Estate  of  Decedent  not  Recoveralile. 

Sec.  620.     Necessity  of  Evidence  Showing  Earnings  Etneficiarie.s  have 
been  Deprived  of. 

Sec.  621.     Award  of  Exemplary  Damages  not   Permissible  as  to  Inter- 
state Employes. 

Sec.    622.     Funeral    Expenses    not    Recoverable    in    Actions    under    the 
Federal  Act. 

Sec.  623.     Necessity  of  Showing  Contributions  during  Lifetime  of  De- 
ceased to  Beneficiaries  of  First  and  Second  Classes. 

Sec.  624.     Illustrative   Cases' Involving   Sufficiency   of   Proof   to   Estab- 
lish Dependency. 

Sec.  625.     Actual  Dependency  Either  Total  or  Partial  must  be  shown 
by  Beneficiaries  of  Third  Class. 

Sec.  626.     What    Constitutes    Dependency    as    to    Third     Class    Bene- 
ficiaries. 

Sec.  627.     Proof  of  Occasional  Gifts  does  not  Create  Dependency  us  to 
Beneficiaries  of  Third  Class. 

Sec.  628.     Cases  Declaring  the  True  Measure  of  Damages  and  Approved 
by  the  United  States  Supreme  Court. 

Sec.    629.     Erroneous  Instructions  on  Measure  of  Damages  under  Fed- 
eral Act. 

Sec.  630.     Errorless  Instructions  on  IMeasure  of  Damages  under  Federal 
Act. 

Sec.  631.     Reference  in  Instructions  on  IMeasure  of  Damages  to   Sum 
Sued  for,  not  Erroneous. 

Sec.  632.     State    Statutes    Limiting    Amounts    Recoverable    in    Death 
Cases  Inapplicable  to  Interstate  Employes. 

Sec.  633.     State  Law  Giving  Earnings  of  Minor  Son  to  Father  Appli- 
cable in  Determining  Pecuniary  Loss. 

Sec.  634.     Effect  of  Excessive  Apportionment  to  one  Beneficiary. 


vl  Federal  Liarilitiks  of  Caeriees. 

Sec.  635.  Remittitur  may  Cure  Error  of  Failure  to  Reduce  Damages 
on  Account  of  Contributory  Negligence. 

Sec.  636.  Propriety  of  Special  Verdicts  When  Actions  Involve  Re- 
duction of  Damages  Due  to  Contributory  Negligence. 

Sec.  637.  Settlement  with  One  Beneficiary  does  not  Defeat  Action  by 
a  Personal  Representative. 

Sec.  638.  Damages  Due  Each  Beneficiary  ]\Iay  be  Apportioned  in  the 
Verdict. 

CHAPTER  XXXII. 

CONTRACTS    FORBIDDEN    BY    LIABILITY    ACT. 

Sec.  639.     The   Statutory  Provision. 

Sec.  640.  Statute  Prohibiting  Carriers  from  Evading  Liability  by  Con- 
tracts or  Regulations,  Valid. 

Sec.  641.     Statute  Applies  to  Existing  as  Well  as  Future  Contracts. 

Sec.  642.  Acceptance  of  Benefits  from  Employer  no  Bar  to  Suit  Against 
Joint  Tort-Feasor. 

Sec.  643.  Inhibition  of  Section  5  Limited  to  Employes  of  the  Car- 
rier. 

Ses.  644.  Release  of  Cause  of  Action  for  Injury  not  a  Contract  With- 
in  Section   6. 

CHAPTER   XXXIII. 

STATUTE   OF   LIMITATION. 

Sec.  645.     Statutory    Provision. 

Sec.  646.  Institution  of  Suit  Within  Specified  Time  a  Condition  Prece- 
dent to  Recovery. 

Sec.  647.  Plea  of  Limitation  not  Required  When  Record  Shows  Fil- 
ing of  Suit  after  Lapse  of  TWo  Years. 

Sec.  648.  Limitation  Period  may  not  be  Avoided  by  Estoppel  or 
Fraudulent   Representations. 

Sec.  649.  Insanity  of  Injured  Employe  Cannot  Operate  to  Extend 
Time  for  Filing  Suit. 

Sec.  650.  When  Cause  of  Action  under  Federal  Act  Accrues  in  Death 
Cases. 

Sec.  651.     Time  of  Commencement  of  Action  a  Question  of  Procedure. 

Sec.  652.  Error  to  Submit  Question  of  Limitation  to  Jury  When 
Facts  Appear  Without  Dispute. 

CHAPTER   XXXIV. 

JURISDICTION  OF  STATE  AND   FEDERAL  COURTS. 

Sec.    653.     Actions   may  be  Brought  in  Federal  Courts. 

Sec.  654.     Suits  under  Federal  Act  may  Also  be  Prosecuted  in   State 

Courts. 
Sec.  655.     Causes  Instituted  in  State  Courts  not  Removable  to  Federal 

Courts. 
Sec.  656.     Removability   when   Petition   States  Cause   of  Action   under 

both   State   Law   and   Federal  Act   in   Separate   Courts. 


Table  of  Contents.  xU 

Sec.  657.     Contrary  Decisions  by  Other  Federal  Courts. 

See.  658.  When  Petition  Does  not  State  Cause  of  Action  Under 
Federal    Act    Although    so    Intended. 

Sec.  659.  Judgment  of  Highest  State  Court  in  Action  undc^r  Federal 
Act  may  be  Reviewed  by  United  States  Supreme  Court. 
When. 

Sec.  660.  Remedy  by  Writ  of  Error  Excluded  in  Certain  Cases  by 
Amendatory  Act  of  1916. 

Sec.  661.  Record  must  Show  Right  under  Federal  Laws  was  Specially 
Set  up  and  Denied  by  State  Court. 

Sec.  662.  Contention  that  there  is  or  is  not  Sufficient  Evidence  to 
Show  Liability,  Will   Support  Writ  of  Error. 

Sec.  663.  Power  to  Review  does  not  Extend  to  Questions  Merely 
Incidental   and   Non-Federal   in   Character. 

Sec.  664.  Ruling  of  State  Court  that  Federal  Question  was  Sufficient- 
ly  Raised  Binding  upon   United   States   Supreme  Court. 

Sec.  665.  Federal  Questions  to  Support  Writ  of  Error  to  United 
States  Supreme  Court,  need  not  be  Raised  by  the  Pleadings. 

Sec.  660.  Foregoing  Rule  Subsequently  Qualified,  Limited  and  Ex- 
plained. 

Sec.  667.  Pleading  Federal  Act  and  Submitting  Case  to  Jury  Under 
State  Law,  no  Denial  of  Federal  Right. 

Sec.  6G8.  When  Petition  not  Stating  a  Good  Cause  of  Action  under 
Federal    Act    Raises    a    Federal    Question. 

Sec.  669.  Claim  that  Verdict  is  Excessive  not  Reviewable  by  Writ 
of  Error. 

Sec.  670.  Pleading  and  Practice  in  State  Courts  Under  Employers' 
Liability   Statute  not   Federal   Questions. 

Sec.  671.  State  Law  Requiring  Facts  Showing  Applicability  of  Federal 
Act  to  be  Pleaded  no  Denial  of  Federal  Right. 

Sec.  672.  Refusal  of  Trial  Court  to  Take  Case  from  Jury  Will  not  be 
Disturbed  by  National  Supreme  Court  Unless  Palpably  Er- 
roneous. 

CHAPTER   XXXV. 

PARTIES,  PLAINTIFFS  AND  DEFENDANTS,  IN  ACTIONS  UNDER 
LIABILITY    ACT. 

Sec.  673.  Personal  Representative  Only  can  Bring  Suit  in  Case  of 
Death.  • 

Sec.  674.  W^idow  Cannot  Maintain  Suit  in  Individual  Capacity  Al- 
though she  May  be   Sole  Beneficiary. 

Sec.  675.  Want  of  Legal  Capacity  in  Widow  to  Sue  Cannot  be 
Waived. 

Sec.  676.     Ancillary   Administrator    may    Sue   Under   the    Federal   Act. 

Sec.  677.  Personal  Representative  Alone  may  Revive  Suit  Commenced 
by  Employe  in  his  Lifetime. 

Sec.  678.  Existence  of  Other  Property  Not  Necessary  to  Secure  Ap- 
pointment   of    Personal    Representative. 


xlii  Federal  Liabilities  of  Carriers. 

Sec.  679.     Agents  and   Servants  Whose  Negligence  Caused   Injury,  not 

Liable  under  the  Federal  Act. 
Sec.   680.     Lessor  of  a  Railroad  may  be  Made  Party  Defendant. 
Sec.  681.     Personal    Representative    Appointed    in    One    State    CannoL 

Sue  in  Another  State  Without  Consent. 

CHAPTER  XXXVI. 
PLEADINGS  UNDER   LIABILITY   ACT. 
Sec.  682.     Plaintiff's  Petition  Must  Plead  Facts  Showing  That  Injury 
or  Death  Occurred  under  Conditions  Described  in  Federal 
Act. 
If   Petition    States   Cause   of   Action    Solely   under    Federal 
Law,  There  can  be  no  Recovery   under  State  Law — Con- 
trary Rulings. 
Petition   Stating  a  Cause  of  Action   Under  State  Law,  Re- 
covery   Permitted    under  Federal    Act   When    Omitted    Al- 
legations are  Supplied  by  the  Answer. 
Recovery    under    Petition    Stating    Cause    of    Action    under 
State  Law  Though  Evidence  Shows  a  Case  under  Federal 
Act,  Harmless  Error  on  Appeal,  When. 
Pleading  Cause  of  Action  under  State  Law   in   One   Count 

and  under  Federal  Act  in  Another  Count,  Allowed. 
Petition    Need    not    Specifically    Refer    to    the    Act    if    Facts 

Showing  Liability  Thereunder  are   Pleaded. 
State  Law  as  to  Sufficiency  of  Pleading  Governs. 
Allegations  as  to  Engagement  in  Interstate  Commerce  Held 

Sufficient. 
Allegation  to  Show  Cause  of  Action  under  the  Federal  Act 

Held  not  Sufficient. 
In   cases  of  Death   Petition   Must  Allege   Survival   of   Bene- 
ficiaries Named  in  Statute. 
Petition  Must  Allege  Pecuniary  Loss  to  Beneficiaries. 
In  Suits  under  State  or  Common  Law,  Applicability  of  Fed- 
eral Act  may  be  Raised  by  Answer. 
Where   Petition   is   Under   State   Law    and   Evidence    Shows 

Case  under  Federal  Statute,  Plaintiff  Cannot  Recover. 
Defendant  in  Suit  under  State  Law  Must  Specifically  Plead 
Facts  under  Federal  Act  to  Defeat  Recovery. 
Sec.    696.     Amendment  Setting  up  New  Cause  of  Action  after  Two-Year 

Period  of  Limitation  not  Allowed. 
Sec.  697.     Amendments    Permissible    after    Two-Year    Period    of    Limi- 
tation. 

CHAPTER  XXXVII. 
EVIDENCE    UNDER   LIABILITY    ACT. 
Sec.  698.     Rules  of  Evidence  Governed  by  State  Law. 
Sec.  699.     Law  of  Forum  Determines  Whether  Widow  or  Other  Bene- 
ficiaries may  Testify. 


Sec. 

683. 

Sec. 

684. 

Sec. 

685. 

Sec. 

686. 

Sec. 

087. 

Sec. 

688. 

Sec. 

689. 

Sec. 

690. 

Sec. 

691. 

Sec. 

692. 

Sec. 

693. 

Sec. 

694. 

Sec. 

695. 

Table  of  Contents.  xliii 

Sec.  700.  state  Law  not  Applicable  in  Passing  on  Demurrer  to  the 
Evidence. 

Sec.  701.  Record  Evidence  of  Interstate  Shipments— Statutory  Pro- 
vision and  Order  of  Interstate  Commerce  Commission. 

Sec.  702.  Method  of  Proving  When  Train  and  Switching  Crews  are 
■  Engaged  in  Interstate  Commerce. 

Sec.  703.  Method  of  Proving  When  Other  Railroad  Employes  are 
Engaged  in  Interstate  Commerce. 

Sec.  704.  Evidence  Held  Sufficient  to  Show  that  Train  was  Carrying 
Interstate  Commerce. 

Sec.  705.  Evidence  Held  not  Sufficient  to  Show  that  Train  was  Carry- 
ing Interstate  Commerce. 

CHAPTER  XXXVIII. 

MATTERS    OF   PRACTICE    UNDER   LIABILITY   ACT. 

Sec.  706.  At  What  Stage  of  Proceedings,  Motion  to  Elect  Should  be 
Sustained — Practical  Considerations. 

Sec.  707.  Motions  to  Elect  under  Iowa  Statute  in  Actions  under  Fed- 
eral Act. 

Sec.  708.  Instances  Where  Motion  to  Elect  Should  have  been  Sus- 
tained before  Trial. 

Sec.  709.  Widow  Suing  in  her  Own  Name  in  One  Suit  and  as  Ad- 
ministratrix in  Another,  Cannot  be  Compelled  to  Elect. 

Sec.  710.  Verdicts  by  Less  Than  Twelve  Jurors,  When  Permissible 
under  State  Law,  Valid  in  Actions  under  Federal  Statute. 

Sec.  711.  Commencement  of  Action  under  State  Law  no  Bar  to  Sub- 
sequent Suit  under  Federal  Act. 

Sec.  712.     When  Suit  under  State  Law  is  Res  Adjudicata. 

Sec.  713.  Errors  in  Actions  under  Federal  Act  Held  Harmless  on  Ap- 
peal. 

Sec.  714.  Practice  of  Granting  Partial  new  Trials  in  Actions  under 
Federal  Act,  Proper,  When. 

Sec.  715.  Power  of  State  Courts  under  Federal  Act  to  Direct  Entry  of 
Judgment  Notwithstanding  Verdict. 

Sec.  716.  Power  of  Administrator  to  Settle  Claims  under  Federal  Act 
Without  Consent  of  Court. 

Sec.  717.  State  Laws  Adding  Penalties  to  Judgment  when  Affirmed 
on  Appeal  Applicable  under  Federal  Act. 

Sec.  718.  Plaintiff  in  Action  under  Federal  Act  may  Sue  as  a  Poor 
Person  in  United  States  Courts,  When. 


xliv  Federal  Liabilities  of  Carriers. 

Part  Four 

FEDERAL  SAFETY  APPLIANCE  ACT. 

CHAPTER  XXXIX. 

HISTORICAL   REVIEW    OF    ORIGINAL    ACT    AND    AMENDMENTS 
AND  ORDERS   THEREUNDER. 

Sec.  719.  Futile  Legislation  of  the  States  Requiring  the  Use  of  Auto- 
matic  Couplers. 

Sec.  720.  Liability  of  Carriers  under  the  Common  Law  as  to  Couplers 
and  Brakes. 

Sec.  721.  Causes  Including  the  Enactment  of  the  Original  Federal 
Safety  Appliance  Act. 

Sec.  722.     Summary  of  the  Provisions  of  the  Original  Act  of  1893. 

Sec.  723.  Original  Order  of  Commission  Prescribing  Standard  Height 
of  Drawbars  on  Freight  Cars. 

Sec.  724.  Inadequacies  and  Defects  of  Statute  and  Difficulties  in  its 
Enforcement. 

Sec.  725.     Summary  of  the  Amendments  of  1903. 

Sec.  726.  Order  of  Commission  Increasing  Minimum  Percentage  of 
Cars  in  Trains  to  be  Equipped  with  Air  Brakes. 

Sec.  727.  Agitation  for  Standard  Safety  Appliances  on  all  Cars  used 
by  Railroads  Engaged  in  Interstate  Commerce. 

Sec.  728.  Interstate  Commerce  Commission  Authorized  to  Standardize 
Appliances  by  Amendment  of  1910. 

Sec.  729.     New  Order  Concerning  Height  of  Drawbars  on  Freight  Cars. 

Sec.  730.  Standardization  Order  of  the  Interstate  Commerce  Com- 
mission. 

CHAPTER   XL. 

PURPOSE,  GENERAL  SCOPE,  VALIDITY,  INTERPRETATION  AND 
EFFECT    OF    STATUTE. 

Sec.  731.     Validity  of  the  Original  Safety  Appliance  Act  of  1903. 

Sec.  732.  Purpose  and  Object  of  Congress  in  Enacting  the  Safety  Ap- 
pliance  Act. 

Sec.  733.     Construction  of  Statute. 

Sec.  734.  Rules  Governing  Construction  of  Criminal  Statute  not  Ap- 
plicable. 

Sec.  735.  Federal  Decisions  Control  in  Construing  Safety  Appliance 
Act. 

Sec.  736.  Custom  of  Railroads  with  Acquiescence  of  Commission  Per- 
suasive in  Determining  Meaning  of  Statute. 

Sec.  737.  Distinction  Between  This  Statute  and  Employers'  Liabil- 
ity Act  as  to  Intrastate  Commerce. 

Sec.  738.  Remedial  Provisions  of  Safety  Appliance  Act  not  Limited 
to  Employes. 


Table  of  Contents.  xlv 

Sec.  739.  statute  Applies  to  All  the  Territories  of  the  United  States 
and  the  District  of  Columbia. 

Sec.  740.  Safety  Appliance  Act  as  Amended  Includes  Cars  Used  in 
Intrastate  as  Well  as  in  Interstate  Commerce. 

Sec.  741.  Constitutionality  of  Amendment  Including  Cars  Used  Ex- 
clusively In   Intrastate  Commerce. 

Sec.  742-     Relationship  of  Intrastate  Cars  to  Interstate  Commerce. 

Sec.  743.     Meaning  of  the  Term  "Used"  on  Interstate  Highways. 

Sec.  744.  Applicability  of  Statute  to  Intrastate  Cars  on  Tracks  Other 
Than  Main   Lines. 

Sec.  745.     No   Distinction   Between   Passenger   and   Freight  Cars. 

Sec.  746.  State  Laws  as  to  Safety  Appliances  on  all  Cars  of  Inter- 
state   Railroads   Invalid. 

Sec.  747.  Punishment  of  Crime  Against  Two  Sovereignties  Not  Ap- 
plicable in  Such  Cases. 

Sec.  748.  Delegation  to  American  Railway  Association  and  Commis- 
sion of  Authority  to  Designate  Height  of  Drawbars  Valid. 

Sec.  749.     Cars   and    Vehicles    Subject   to    the   Statute. 

Sec.  750.     Statute  Applies  to  Island  of  Porto  Rico. 

Ses.  751.  Carriers  Hauling  Car  with  Defective  Appliances  over  Track 
of  Another  Railroad  Subject  to  Penalty. 

CHAPTER   XLI. 

WHEN    CARRIERS    ARE    ENGAGED    AND    CARS    ARE    USED    IN 
INTERSTATE  COMMERCE  UNDER  SAFETY  APPLIANCE  ACT. 

Sec.  752.     Scope  of  Chapter. 

Sec.  753.  What  Constitutes  Interstate  Commerce  within  Purview  of 
Safety  Appliance  Act. 

Sec.  754.     Railroad  Must  be   a  Common  Carrier. 

Sec.  755.  Two  Requirements  as  to  Interstate  Character  of  Carriers 
and  Cars  Prior  to  1903  Amendment. 

Sec.  756.  Proof  of  Use  of  Car  in  Moving  Interstate  Traffic  not  Es- 
sential Since  the  1903  Amendment. 

Sec.  757.  But  Use  of  Car  in  Moving  Interstate  Traffic  Still  Material 
in  Determining  Application  of  Employers'  Liability  Act. 

Sec.  758.  Interstate  Status  of  Belt  Lines,  Terminal  Railroads  and 
Stock  Yard  Companies. 

Sec.  759.  Railroad  Wholly  Within  State  Transporting  Freight  in  Con- 
tinuous Shipment  Without  Traffic  Agreement  with  Other 
Carriers. 

Sec.  760.  Foregoing  Principle  Illustrated  and  Applied  in  Adjudicated 
Cases. 

Sec.  761.  Interurban  Electric  Railroads  Participating  in  Movement  of 
Interstate  Traffic. 

Sec.  7G2.  Industrial  Railroads  Forming  Connecting  Link  for  Inter- 
state Transportation. 

Sec.  763.  Transportation  from  One  Point  to  Another  in  Same  State 
Passing  in  Transit  Through  Another  State. 


xlvi  Federal  Liabilities  of  Carkieks. 

Sec.  764.  All  Cars  Hauled  in  Interstate  Trains  Impressed  with  Inter- 
state Character. 

Sec.  765.  Switching  of  Car  From  One  Yard  to  Another  Preparatory 
for  Interstate  Trip. 

Sec.  766.  Re-billing  Does  not  Control  in  Determining  Whether  a 
Shipment    is    Interstate    or    Intrastate. 

Sec.  767.  Hauling  Empty  Car  Over  the  State  Line  Constitutes  Inter- 
state Commerce. 

Sec.  768.  Car  Containing  Interstate  Traffic  Placed  on  Switching  Track 
for  Repairs. 

Sec.  769.     Dining  Car  on  Siding  Regularly  Hauled  in  Interstate  Trains. 

Sec.  770.     Transportation  of  Interstate  Traffic  for  Express  Companies. 

Sec.  771.  Transportation  of  Company  Property  Over  State  Line  is  In- 
terstate Commerce. 

Sec.  772.  Distinctions  between  "Haul"  and  "Use"  of  Cars  Eliminated 
by  1903  Amendment. 

Sec.  773.  Movement  of  Cars  From  Transfer  Tracks  to  Industrial 
Track. 

CHAPTER  XLII. 
BASIS,  NATURE  AND  EXTENT  OF  LIABILITY  UNDER  STATUTE. 
Sec.  774.     Disregard  of  Requirements  of  Statute  Negligence  Per  Se.  ^ 
Sec.  775.     Statute  Imposes  Absolute  and  Unqualified  Duty  to  Maintain 

Appliances  in  Secure  Condition. 
Sec.  776.     Substitutes  for  Appliances  Required  by  Safety  Appliance  Act 

not  Lawful. 
Sec.  777.     Duty  of  Carrier   in   Personal   Injury   Suits   as   Broad   as   in 

Actions  for  Penalites. 
Sec.  778.     Remedial   Features  of   the   Statute   Apply   to   Movements   of 

Cars  Solely  for  Repairs. 
Sec.  779.     Doctrine   of   Seigel   v.   New    York,  C.    &   H.    R.    R.    Co.,    and 

Like  Cases,  Overruled. 
Sec.  780.     Duties  Imposed  by  Statute  in  One  Relation  not  Actionable  in 

Another. 
Sec.  781.     Proof  of  Knowledge  of  Defect  Not  an  Element  of  Violation 

of  Statute. 
Sec.  782.     Use   of  Care    and    Diligence    in    Discovering    and    Repairing 

Defects,  No  Defense. 
Sec.  783.     Proof   of   Negligence   Under   Liability   Act   not   Required   if 

Injury  was  Due  to  Violation  of  Safety  Appliance  Act. 
Sec.  784.     Same  Subject— Taylor  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
Sec.  785.     When    Employe's   Negligence    is   Sole   Cause   of   Injury,    No 

Recovery  Permitted. 
Sec.  786.     Duties  Imposed  by  Statute  Cannot  be  Evaded  by  Contract. 
Sec.  787.     Inconvenience    and    Impracticability    of    Statutory    Require- 
ments Will  not  Excuse  Violation. 
Sec.  788.     Appliances  Required  by  Statute  must  be  Operative. 


Table  of  Contents.  xlvii 

Sec.  789.     Failure  of  Employe  to  Operate  Appliance  Capable  of  Being 

Operated,  no  Offense. 
Sec.  790.     Deliberate  Act  of  Employe  in  Causing  Appliance  to  become 

Defective,  no  Defense. 
Sec.  791.     Duties  Placed  upon  Carrier  by  Statute  Cannot  be  Evaded  by 

Assignment. 
Sec.  792.     Railroad  Liable  for  Condition  of  Foreign  Cars. 
Sec.  793.     Carriers  may  Refuse  Defective  Cars  from  Connecting  Lines. 
Sec.  794.     Defective  Equipment  Must  be  Proximate  Cause  of  Injury. 
Sec.  795.     Question  of  Proximate  Cause  Ordinarily  for  the  Jury. 

CHAPTER  XLin. 
STATUTORY    REQUIREMENTS    AS    TO    AIR    BRAKES. 

Sec.  796.     Former  and  Present  Requirements  as  to  Power  or  Air  Brakes 

on  Trains. 
Sec.  797.     Air  Brake  Provision  not  Applicable  to  Switching  Movements. 
Sec.  798.     What  Constitutes  a  "Train"  Under  Air  Brake  Provision. 
Sec.    799.     Inter-yard     IMovements    as    Distinguished     from    Intra-yard 

Movements  Within  Air  Brake  Provision — Transfer  Trains. 
Sec.  800.     Air    Brakes    Required    on    Interurbau    Electric    Trains    and 

Motors. 
Sec.  801.     Injuries   in   Collisions    Due    to    Failure   of   Train    Brakes   to 

Work. 
Sec.  802.     Use   of  Hand    Brakes    in    Train    Movements    Prohibited    and 

Operation  of  Air  Brakes  Mandatory. 
Sec.  803.     Absolute    Duty   to   Maintain    Appliances   in    Repair   Applies 

to  Air  Brakes. 

CHAPTER  XLIV. 

STATUTORY  REQUIREMENTS  AS  TO  AUTOMATIC  COUPLERS. 

Sec.  804.     The  Statutory  Provision. 

Sec.  805.  Object  of  Congress  in  Requiring  Automatic  Couplers  on 
Railroad  Cars. 

Sec.  80G.  Illustrative  Cases  Showing  Defective  Couplers  in  Violation 
of  Statute. 

Sec.  807.  Failure  of  Coupler  to  Work  Under  all  Circumstances  Con- 
stitutes  Violation   of  Statute. 

Sec.  808.  Employes  Entitled  to  Protection  of  Statute  Requiring  .Auto- 
matic Couplers. 

Sec.  809.  Trainmen  on  Top  of  Cars  and  not  Actually  Engaged  in 
Coupling  Them. 

Sec.  810.  When  Violation  of  Automatic  Coupler  Provision  is  not  Ac- 
tionable as  to  Employes  Injured  on  Duty. 

Sec.  811.  Employes  Entering  Between  Cars  for  Other  Purposes  Than 
Coupling  or  Uncoupling. 

Sec.  812.  Effect  of  Equipping  Cars  with  Automatic  Couplers  of  Dif- 
ferent Patterns. 


xlviii  Federal  Liabilities  of  Oabeiees. 

Sec.  813.  Coupler  Provision  Applies  to  all  Cars  on  Interstate  High- 
ways by  Rail. 

Sec.  814.  Automatic  Couplers  Required  in  Switching  Operations  as 
well  as  in  Line  Movements. 

Sec.    815.     Statute  Applies  to  Coupling  as  Well   as  to   Uncoupling. 

Sec.  816.  Coupling  of  Air  and  Steam  Hose  Between  Cars  no  Part  of 
Coupling  Operation. 

Sec.  817.     Operative  Couplers  Required  at  Both  Ends  of  Cars. 

Sec.  818.     Exception   to   the  Foregoing — Conflicting  Rulings. 

Sec.  819.  Automatic  Couplers  not  Required  on  Singly  Operated  Self- 
Propelled  Trolley  Cars. 

Sec.  820.  Preparation  of  Car  for  Coupling,  Part  of  Act  Regulated  by 
Statute. 

Sec.  821.  That  Coupling  Could  Have  Been  Automatically  Effected  by 
Using  Lever  on   Other   Side,  no   Defense. 

Sec.  822.  Automatic  Couplers  not  Required  between  Engine  and 
Tender. 

Sec.  823.  Actual  Use  of  Coupler  not  Necessary  to  Constitute  Of- 
fense. 

Sec.  824.     Failure  of  Pin  Lifter  to  Open  Knuckles. 

Sec.  825.  Illustrative  Cases  in  which  Violations  of  Coupler  Provision 
Held  to  be  Proximate  Cause  of   Injuries. 

Sec.  826.  Forms  of  Instructions  for  Violation  of  Coupler  Provision  in 
Personal   Injury  Cases. 

Sec.  827.     Model  Couplers  May  be  Exhibited  to  the  Jury. 

CHAPTER  XLV. 

DUTIES  OF  CARRIERS  AS  TO  GRAB  IRONS,  SILL  STEPS, 
RUNNING   BOARDS  AND  HAND   BRAKES. 

Sec.  828.  Requirement  of  Original  Act  Limited  to  Handholds  for  Cou- 
pling and  Uncoupling  Purposes  Only. 

Sec.  829.  Grab  Iron  Provision  Enlarged  by  Amendment  of  1903  to 
Include  Intrastate  Cars. 

Sec.  830.  Sill  Steps,  Hand  Brakes,  Ladders,  Running  Beards  and  Cer- 
tain  Grab   Irons. 

Sec.  831.  Employes  Using  Grab  Irons  for  Other  Purposes  Than  Cou- 
pling Cars,  Within  Protection  of  Statute. 

Sec.  832.     No  Distinction  between  Foreign  and  Domestic  Cars. 

Sec.  833.  Substitutes  Affording  Equal  Security  with  Grab  Iron  or 
Handhold  Unlawful. 

Sec.  834.  Duty  to  Furnish  Sill  Steps,  Running  Boards,  Hand  Brakes 
and  Handholds  Absolute  and  Mandatory. 

Sec.  83.5.  Duties  of  Carriers  Include  Maintenance  as  well  as  Equipment 
of  Cars  with  Statutory  Appliances. 

Sec.  836.     Patton  v.   Illinois  C.  R.  Co.   and   Like  Cases  Overruled. 

Sec.  837.  Extent  of  the  Requirements  of  Section  2  of  the  1910  Amend- 
ment. 


Tabi.e  of  Contents.  xlix 

Sec.  83S.  Illustrative  Violation  of  Failure  to  Maintain  Secure  Running 
Board. 

Sec.  739.  Erroneous  Views  as  to  Non-Applicability  of  Hand  Urake  Pro- 
vision to  Switching  Operations. 

Sec.  840.  Requirements  of  Section  2  of  1910  Amendment  not  Affected 
by  Order  of  Interstate  Commerce  Commission  under  Sec- 
tion 3. 

Sec.  841.  Purpose  of  Congress  in  Empowering  Commission  to  Prescribe 
Standardized  Equipments  on  all  Cars. 

CHAPTER  XLVI. 
STATUTORY    REQUIREMENTS    AS    TO    DRAWBARS. 

Sec.  842.     Standard  Height  of  Drawbar   Required  After  December  31, 

1910. 
Sec.  843.     Distinction   Between   New   and   Old  Orders  as   to  Height  of 

Drawbars. 
Sec.  844.     Ruling  in  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  Modified 

by  New  Order. 
Sec.  845.     Instruction  Erroneous  Under  Both  Old  and  New  Orders. 
Sec.  846.     Instructions  Erroneous  Under  Old  Order  but  Correct  Under 

the  New  Order. 
Sec.  847.     Drawbar  Provision  Applicable  to  Engines  as  well   as  Cars. 
Sec.    848.     Duty    as    to   Height    of    Drawbars   Cannot    be    Delegated    or 

Evaded  by  Casting  it  Upon  Others. 

CHAPTER  XLVII. 

CARS  AND   MOVEMENTS   EXCEPTED  FROM   REQUIREMENTS   OF 

STATUTE. 

Sec.  849.     The   Statutory  Provision. 

Sec.  850.     "Necessary  IMovement"  for  Repairs  Defined. 

Sec.  851.     When   Duty   Arises  to   Repair   Cars   at   Point   of   Discovery. 

Sec.  852.     All  Movements  of  Cars  from  Repair  Points  Prohibited. 

Sec.  853.     Illustrative  Movements  in  Violation  of  1910  Proviso. 

Sec.  854.     Burden  upon  Carrier  to  Bring  Itself  Within  Proviso  of  Act 

of  1910. 
Sec.  855.     Defective  Cars  may  be  Hauled  to  Repair  Points  in  Revenue 

Trains  or  with  Other  Cars  Commercially  Used. 
Sec.  856.     Exceptions    to    the    Safety   Appliance   Act   must    be    Strictly 

Construed. 
Sec.  857.     Exempted  Movements  for  Repair  do  not  Affect  Liability  for 

Personal  Injuries. 
Sec.  858.     Cars   on    Interurban    Railroads    Moving    Partly    Over    Street 

Railroad   Tracks   Not   Exempted. 
Sec.  859.     INIay  Haul  Defective  Cars  Containing  Livestock  or  Perishable 

Freight  with  Chains. 
Sec.  860.     Necessity  of  Movement  for  Repairs  Generally  a  Question  for 

the  Jury. 

1  Control  Carriers  D 


1  Fedeeal  Liabilities  of  Careiers. 

Sec.  861.  Law  as  to  IMovement  of  Defective  Cars  Prior  to  1910  Amend- 
ment. 

Sec.  862.  Cars  Exempted  from  Requirements  of  Act  on  Interstate 
Highways  not  Subject  to  State  Laws. 

CHAPTER  XLVIII. 

ASSUMPTION  OF  RISK  AND  CONTRIBUTORY  NEGLIGENCE 
UNDER  SAFETY  APPLIANCE  ACT. 

Sec.    863.     Assumption  of  Risk  no  Defense  to  Injury  Due  to  Violation  of 

Safety  Appliance  Act. 
Sec.  864.     Employe's  Knowledge  of  Defect  no  Bar  to  a  Suit. 
Sec.  865.     Assumption  of  Risk  When  Two  Distinct  Acts  of  Negligence 

are  Submitted. 
Sec.  866.     Distinction  between   Assumption   of  Risk  and   Contributory 

Negligence. 
Sec.  867.     Contributory   Negligence   a   Defense   Prior   to   Enactment   of 

Employers'  Liability  Act. 
Sec.  868.     Contributory  Negligence  no  Defense  When  Injured  Employe 

is  Engaged  in  Interstate  Commerce. 
Sec.  869.     Contributory   Negligence    a   Defense   When   Employe   is   En- 
gaged in  Intrastate  Commerce. 
Sec.  870.     State  Statutes  Abolishing  Defense  of  Contributory  Negligence 

Applicable  under  Safety  Appliance  Act,  When. 
Sec.  871.     Effect    of   Rule   Forbidding    Employes   from    Going   Between 

Cars  While  in  Motion. 
Sec.  872.     Contributory  Negligence  a  Defense  to  Failure  to  Have  Air 

Brakes  on  Logging  Trains  on  Interstate  Railroads. 
Sec.  873.     Contributory    Negligence   as   a   Matter   of  Law   in    Choosing 

Dangerous    Way    to    Uncouple    Cars    with    Safe    Method 

Available. 
Sec.  874.     Errorless  Instructions  on  Contributory  Negligence   in   Such 

Cases. 
Sec.  875.     When  Contributory  Negligence  is  a  Question  for  the  Jury. 
Sec.  876.     Illustrative   Cases  in   which  Employes  Going  Between  Cars 

were  Not  Guilty  of  Contributory  Negligence  as  a  Matter  of 

Law. 

CHAPTER  XLIX. 

JURISDICTION  OF  COURTS  AND  MATTERS  OF  PLEADING  AND 
PRACTICE  IN  PERSONAL  INJURY  CASES, 

Sec.  877.     Rights  under  Statute  for  Personal  Injuries  May  be  Enforced 

in  State  Courts. 
Sec.  878.     Procedure   Controlled   by   State  Rules. 
Sec.    879.     Petition   in   Personal    Injury  Cases   Need   Specifically  Refer 

to  Statute. 
Sec.  880.     Plaintiff  Not  Required  to  Negative  Provisos. 


Table  of  Contents.  U 

Sec.  881.     Allegation  as  to  Use  of  Car  in  Moving  Intrastate  Traffic. 

Sec.  882.  Submitting  Case  under  Safety  Appliance  Act  Without  Al- 
legation of  Interstate  Employment  not  Error,  When. 

Sec.  88.3.  Judicial  Notice  of  Orders  of  Commission  under  Saftey  Ap- 
pliance Act. 

Sec.  884.  Federal  Statute  of  Limitation  Controls  When  Employe  is 
Engaged  in  Interstate  Commerce. 

Sec.  885.  State  Statute  of  Limitation  Controls  in  Absence  of  Interstate 
Employment. 

Sec.  886.  Effect  of  Amendment  Stating  a  New  Cause  of  Action  After 
Statute  has  Run. 

CHAPTER  L. 

ACTIONS  FOR  PENALTIES. 

Sec.  887.     In  Prosecutions  for  Penalty,  Carrier  Liable  as  to  Each  Car 

Hauled  in  Violation  of  Statute. 
Sec.  888.     Appropriate  Remedy   for   Recovery  of   Statutory   Penalty. 
Sec.  889.     Proceedings  for  Penalties  Not  Criminal  Actions. 
Sec.  890.     Burden  and  Quantum  of  Proof  in  Actions  for  Penalties. 
Sec.  891.     Preponderance  of  the  Evidence  Defined. 


Part  Five 

MISCELLANEOUS  FEDEEAL  LAWS  REGULATING  CARRIERS. 

Hours  of  Service  Act. 

28-Hour  Live  Stock  Law. 

Boiler  Inspection  Act. 

Ash  Pan  Act. 

Accident  Reports  Act. 

Adamson  Law. 

CHAPTER  LI. 
FEDERAL  HOURS  OF  SERVICE  ACT. 

PlKPO.SE,   SCOPK,  VaI.IUITY  AM)  InTKRI'KKTATION  OK  AcT. 

state  and  Federal  Control  over  Hours  of  Labor  of  Employes 

of  Interstate  Carriers. 
Carriers  and  Employes  Subject  to  the  Hours  of  Service  Act. 
Constitutionality  of  the  Hours  of  Service  Act  Affirmed. 
Statute  not  Void  for  Uncertainty. 

Classification  of  Operators  in  Section  2  of  Statute  does  not 
Render    Statute    Invalid. 
Sec.  897.     Power  of  Commission  to  Require  Monthly  Reports  by  Car- 
riers Showing  Violations  of  Statute. 
Sec.  898.     Purpose   of   Congress   in    the   Enactment    of    the   Hours   of 
Service  Act. 


A 

Sec. 

892. 

Sec. 

893. 

Sec. 

894. 

Sec. 

895. 

Sec. 

896. 

lii  FeDF.KAL  LlARlLTTlES  OF  OaEETEES. 

Sec.  899.     The  Statute,  being  Remedial,  should  be  Liberally  Construed. 

Sec.  900.     Term  "Railroad"  as  Used  in  the  Act  Defined. 

Sec.  901.     Penalties  for  Violation   of   Statute— Procedure  and   Duty  of 
Interstate  Commerce  Commission. 

Sec.  902.     Separate  Penalty  Incurred  for  each  Employe  Kept  on  Duty 
Beyond  Statutory  Period  Though  Due  to  Same  Cause. 

Sec.  903.     Statute  may  not  be  Evaded  by  Requiring  Service  of  Another 
Kind  after  Statutory  Period. 

B.     Limitations  Upon  Hours  of  Service. 

Sec.  904.     Limitation  upon  the  Hours  of  Service  of  Employes  Engaged 
in  or  Connected  with  Movement  of  Trains. 

Sec.  905.     When  an  Employe  is  "on  Duty." 

Sec.  906.     Effect  of  Brief  Periods  Off  Duty  in  Breaking  Continuity  of 
Service. 

Sec.  907.     Release  from  Duty  for  Definite  Period  of  Two  Consecutive 
Hours. 

Sec.  908.     Duty  to  Substitute  Relief  Crews  at  Intermediate  Terminals 
to  Prevent  Excessive  Hours. 

Sec.  909.     Fireman  Engaged  in  Watching  an  Engine  on   Duty  Within 
Meaning  of  Statute. 

Sec.    910.     Limitation  upon  the  Hours  of  Service  of  Employes  Handling 
Orders  Affecting  Train  Movements. 

Sec.  911.     Applicability  of  Operators'  Proviso  to  Tower  Men  and  Switch 
Tenders   in  Railroad  Yards — Confiicting   Rulings. 

Sec.  912.     Hours  of  Service  in  Telegraph  Offices  Operated  During  Day 
and  Part  of  Night. 

Sec.  913.     Separate   Periods   of   Service    for    Operators   not   Exceeding 
Total  of  Nine  Hours  in  Twenty-four  Hours,  not  Unlawful. 

Sec.  914.     Two  Telegraph  Offices   in  One  City   Constitute  One  "Place" 
Within   Statute,  When. 

C.     Statutory  Exceptions  and  Excuses. 

Sec.  91.0.     When  Provisions  of  Statute  Limiting  Hours  of  Service  are 
not  Applicable. 

Sec.  916.     Terms    "Casualty,"    "Unavoidable    Accident"    and    "Act    of 
God"  as  Used  in  Section  3  Defined. 

Sec.  917.     High  Degree  of  Diligence  Required  to  Bring  Carrier  With- 
in Statutory  Exceptions. 

Sec.  918.     Derailments    and    Collisions    of   Trains    Constitute    "Casual- 
ties" within  Meaning  of  Exemption  Clause. 

Sec.  919.     Ordinary  Delays  Incident  to  Train  Operation  not  Valid  Ex- 
cuses. 

Sec.  920.     What  Constitutes  an  Emergency  Within  Operators'  Proviso 
of  Section  2. 

Sec.  921.     Insubordination    of    Employe    may    Constitute    "Emergency" 

Within  Section  2. 
Sec.  922.     Burden  of  Proving  Excessive  Service  to  be  Within  Statutory 
Exception  is  Upon  Carrier. 


Table  of  Contents.  liii 

CHAPTER  LII. 
FEDERAL  28-HOUR  LIVE  STOCK  LAW. 

Sec.  923.     Duties  of  Interstate  Common  Carriers  in  Transporting  Live 

Stock. 
Sec.  924.     Time  Consumed  in  Loading  and  Unloading  Live  Stock  Must 

not  be  Considered — Exception  as  to  Sheep. 
Sec.  925.     Time  may  be  Extended  upon  Written  Request  of  Owner. 
Sec.  926.     When   Carriers  are  Excused  from  Complying  with  Statute. 
Sec.  927.     Animals    Unloaded    Pursuant    to    Statute    may    be    Fed    at 

Expense  of  Owner. 
Sec.  928.     Penalty  for  Non-Compliance  with  28-Hour  Live  Stock  Law. 
Sec.  929.     Statute   not  Applicable   when   Animals   are   Properly   Cared 

For. 
Sec.  930.     Penalties  may  be  Recovered  by  Civil  Actions. 

CHAPTER  LIII. 
FEDERAL  BOILER   INSPECTION  ACT. 

Sec,  931.     Railroads  and  Employes  Subject  to  Boiler  Inspection  Act. 

Sec.  932.     Duties  and  Obligations  of  Carriers  Under  Boiler  Inspection 
Act. 

Sec.  933.     President  Authorized  to  Appoint  Chief  Inspectors  of  Loco- 
motive Boilers. 

Sec.  934.     Fifty  Boiler  Inspection  Districts  Created  with  One  Inspector 
for  Each. 

Sec.  935.     Duties  of  District  Inspectors  in  the  Enforcement  of  Statute 
and  Rules  Thereunder. 

Sec.  936.     Carrier  May  Appeal  from  Decision  of  Inspector  as  to  Con- 
dition of  Locomotive. 

Sec.  937.     Rules  and  Regulations  for  Inspection  of  Locomotive  Boilers 
Required  to  be  Adopted  and  Enforced. 

Sec.   938.     Nature  of  Duty  Created  by  Boiler  Inspection  Act. 

Sec.  939.     Reports   of   Accidents   Affecting   Locomotive   Boilers,   to   be 
Filed  by  Carriers,  When. 

Sec.  940.     Commission   May   Publish   Reports   of   Investigation   of  Ac- 
cidents. 

Sec.  941.     Reports  of  Investigations  not  to  be  Used  in  Damage  Suits. 

Sec.  942.     Penalties  for  Violation  of  Statute. 

Sec.  943.     Terms  "Railroad"  and  "Employes"  Within  Statute  Defined. 

Sec.  944.     Sworn  Reports  of  Inspection  by  Carriers  must  be  Filed. 

Sec.  945.     Chief  Inspector  Required  to  Make  Annual  Report  to  Inter- 
state Commerce  Commission. 

Sec.  946.     Amendment    of    1915    to    Boiler    Inspection    Act    Extending 
Statute  to  all  Parts  of  Locomotives. 

Sec.   947.     State   Laws   Requiring   Headlights    Superseded    by    Amend- 
ment of  1915. 


liv  Federal  Liabilities  of  Carkiees. 

CHAPTER  LIV. 

FEDERAL  ASH  PAN  ACT. 

Sec.  948.  Federal  Ash  Pan  Act. 

Sec.  949.  Penalties  for  Violation  of  the  Act. 

Sec.  950.  Duties    of   Interstate    Commerce    Commission. 

Sec.  951.  Receivers  are  Common  Carriers  within  the  Act. 

Sec.  952.  Statute  not  Applicable  to  Electric  Locomotives. 

CHAPTER  LV. 
FEDERAL   ACCIDENT   REPORTS   ACT. 

Sec.  953.     Duties  of  Common  Carriers  under  Federal  Accident  Reports 

Act. 
Sec.   954.     Terms    "Interstate    Commerce"    and    "Foreign    Commerce" 

Within   Statute  Defined. 
Sec.  955.     Penalty   for  Failure  to  Make   Such   Reports  Within   Thirty 

Days  After  End  of  Each  Month. 
Sec.  956.     Interstate  Commerce  Commission  Authorized  to  Investigate 

all  Collisions,  Derailments,  etc. 
Sec.  957.     Reports  of  such   Investigations  may  be  Published  but  may 

not  be  Used  in  Damage  Suits. 

CHAPTER  LVI. 

ADAM SON  LAW. 

Sec.  958.     Eight   Hours  shall  be   Deemed  Day's   Work   for   Purpose   of 

Reckoning  Compensation  of  Interstate  Employes. 
Sec.  959.     Railroads  and  Employes  Excepted  from  the  Provisions  of  the 

Statute. 
Sec.  960.     President    Empowered    to    Appoint    Commission    to    Observe 

Operation  and  Effect  of  Eight  Hour  Wage  Law. 
Sec.  961.     Wages  of  Railway  Employes   Subject  to  Statute  not  to  Be 

Reduced  Pending  Report  of  Commission. 
Sec.  962.     Penalty  for  Violation  of  the  Adamson  Act. 
Sec.  963.    Adamson  Act   a  Valid  Exercise  of   the   Power   of   Congress 

Under  the  Commerce  Clause. 


Table  of  Contents.  Iv 


Appendixes 

Appendix  A 

The  Act  to   Regulate   Commerce   as  Amended. 
Appendix  B 

The  Elltins  Act. 
Appendix  C 

The  Federal  Bill  of  Lading  Act. 
Appendix  D 

The  Act  Providing  for  Federal  Control  of  Transportation  Systems 
During  War. 
Appendix  E 

Rules  of   Practice   before   the   Commission   in  Proceedings   under 
the  Act  to  Regulate  Commerce. 
Appendix  F 

The  Federal  Employers'  Liability  Act  as  Amended. 
Appendix  G 

Federal  Safety  Appliance  Act  as  Amended. 
Appendix  H 

Orders    of    Interstate    Commerce    Commission    under    Safety    Ap- 
pliance Act. 
Appendix  I 

The  Federal  Hours  of  Service  Act. 
Appendix  J 

The  Federal  Boiler  Inspection  Act. 
Appendix  K 

Rules  and  Orders  of  Interstate  Commerce  Commission  under  Boiler 
Inspection  Act. 
Appendix  L 

The  Federal  28-Hour  Live  Stock  Law. 
Appendix  M. 

The  Federal  Ash  Pan  Act. 
Appendix  N 

The  Federal  Accident  Reports  Act. 
Appendix  O 

The   Adamson   Law 
Appendix  P 

The  Transportation   of  Explosives  Act. 
Appendix  Q 

General  Orders  of  Director  General   of  Railroads  Under  Federal 
Control  Act  of  1918. 


PART  ONE 


FEDERAL  AND  STATE  CONTROL 
OVER  COMMON  CARRIERS. 


FEDERAL  AND  STATE  CONTROL 
OVER  COMMON  CARRIERS. 


CHAPTER   1. 

The   Commekce  Ci^vuse  of   the   Federal   Constitution 

Sec.  1.  Congress  Vested  with  Authority  to  Regulate  All  Interstate  and 
Foreign   Commerce. 

Sec.  2.  Early  Judicial  Construction  of  the  Commerce  Clause — Gibbons 
V.  Ogden. 

Sec.  3.  Judicial  Definitions  of  Term  "Interstate  Commerce"  as  Used 
in  the  Federal  Constitution. 

Sec.  4.  Transportation  from  one  State  to  Another  an  Essential  Ele- 
ment of  Interstate  Commerce. 

Sec.  5.  Congressional  Grant  "to  Regulate"  Commerce  Defined  and 
Explained. 

Sec.  6.  Importation  of  Legitimate  Articles  of  Commerce  from  one 
State  to  Another  Immune  from  State  Legislation. 

Sec.  7.  Commencement  and  Termination  of  Protection  of  the  Com- 
merce Clause — Original  Package  Rule. 

Sec.  8^  States  may  Forbid  Introduction  or  Exportation  of  all 
Articles  not  Legitimate  Subjects  of  Trade  and  Commerce. 

Sec.  9.  Statutory  Exceptions  Empowering  States  to  Regulate  Inter- 
state Shipments  of  Intoxicating  Liquors. 

§  1.  Congress  Vested  with  Authority  to  Regulate 
All  Interstate  and  Foreign  Commerce.  Following  its 
ratification  by  the  states,  the  Constitution  of  the  United 
States  became  et¥ective  on  the  first  Wednesday  in 
March,  1789.  One  of  the  provisions  of  that  historic 
document,  which  was  destined  to  have  a  far-reaching 
effect  in  the  exercise  of  federal  control  within  the  states, 
was  the  clause  in  Section  8  of  Article  1  which  provides 
that  "'The  Congress  shall  have  the  power  *  *  *  to 
regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  Tribes."  The 
authority  thus  delegated  to  the  legislative  department 
of  the  federal  government   to   regulate  interstate   and 

3 


4  Control   Over    Common    Carriers  [^  1 

foreign  commerce,  was  perhaps  the  most  benign  gift 
of  the  constitutional  convention  to  the  nation;  for, 
nnder  the  Articles  of  Confederation,  the  individual 
states,  finding  themselves  in  the  unlimited  possession 
of  power  over  their  own  governments,  passed  iniquitous 
laws  and  impolitic  measures,  from  which  grew  up  a 
conflict  of  commercial  regulations  fatal  to  the  interest 
of  the  country  at  large. 

Before    the    adoption   of    the   federal    constitution, 
the  several  states  frequently  exacted  duties  upon  goods 
in  transit  within  their  boundaries  destined  for   other 
states  and  foreign  countries.     The  evils  resulting  from 
these   conflicting  regulations  of  the   several   states  be- 
came so  flagrant  that  they  threatened  the  dissolution 
of  the  confederacy.    The  causes  which  led  to  the  adop- 
tion of  the   commerce  clause   were  thus   described   by 
Chief  Justice  Marshall:'    "The  oppressed  and  degraded 
state  of  commerce  previous  to  the  adoption  of  the  consti- 
tution can  scarcely  be  forgotten.     It  was  regulated  by 
foreign  nations  with  a  single    view  to  their  own  interests; 
and  our  disunited  efforts  to  counteract  their  restrictions 
were  rendered  impotent  by  want  of  combination.     Con- 
gress, indeed,  possessed  the  power  of  making  treaties; 
but  the  inability  of  the  federal  government  to  enforce 
them  had  become  so  apparent  as  to  render  that  power 
in  a  great  degree  useless.     Those  who  felt  the  injury 
arising  from  this  state  of  things,  and  those  who  were 
capable  of  estimating  the  influence  of  commerce  on  the 
prosperity  of  nations,  perceived  the  necessity  of  giving 
the   control    over   this   important   subject   to    a    single 
government.     It  may  be  doubted  whether  any  of  the 
evils   proceeding    from    the    feebleness    of   the   federal 
government,  contributed  more  to  that  great  revolution 
which  introduced  the  present  system,  than  the  deep  and 
general    conviction   that   commerce   ought   to   be   regu- 
lated by  congress.     It  is  not,  therefore,  matter  of  sur- 
prise,  that   the   grant   should   be   as   extensive   as   the 

1.      Brown     v.      Maryland,     12 
Wheat.   (U.  S.)   419,  6  L.  Ed.  678. 


§  2 J  The  Commfrce  Ci.Aisi-:,  5 

mischief,  and  should  comprehend  all  foreign  commerce 
and  all  commorco  amonf!:  the  States." 

§  2,  Early  Judicial  Construction  of  the  Commerce 
Clause — Gibbons  v.  Ogden.  The  judicial  construction 
of  the  interstate  commerce  clause  of  the  national  Con- 
stitution by  the  United  States  Supreme  Court  com- 
menced with  the  case  of  Gibbons  v.  Ogden-  in  1824 
in  ■which  Chief  Justice  Marshall  wrote  the  opinion. 
This  great  and  famous  case  established  the  supremacy 
of  federal  laws  over  state  statutory  enactments  when 
dealing  with  matters  pertaining  to  interstate  and  for- 
eign commerce.  The  question  before  the  court  was 
the  validity  of  a  law  of  the  state  of  New  York  giving 
to  Livingston  and  Fulton  the  exclusive  right  to  navi- 
gate the  waters  of  that  state  by  steamboat  for  a  term 
of  years.  Basing  his  right  upon  this  statute,  Ogden, 
an  assignee  of  the  rights  of  Fulton  and  Livingston, 
filed  a  bill  in  chancery  in  the  New  York  courts  to  re- 
strain Gibbons,  who  owned  steamboats  running  be- 
tween Elizabethtown,  N.  J.,  and  New  York  City,  from 
navigating  the  waters  within  the  territory  of  the  state 
of  New  York.  Gibbons  alleged  in  his  answer  that  his 
boats  were  duly  enrolled  and  licensed  to  be  employed 
in  the  coasting  trade  under  an  act  of  Congress  passed 
in  1793,  providing  for  enrolling  and  licensing  ships 
and  vessels  to  be  employed  in  the  coasting  trade  and 
for  regulating  the  same.  The  injunction  was  award- 
ed, and,  on  final  liearing,  made  perpetual,  the  state  courts, 
both  trial  and  appellate,  being  of  the  opinion  that  the 
act  was  not  repugnant  to  the  Constitution  of  the  United 
States    or   federal    statutes    enacted    pursuant    thereto. 

Such  was  the  first  historic  clash  between  state  and 
federal  autliority  sul)mitted  to  the  national  Supreme 
Court.  It  fell  to  a  Virginian  and  a  southerner  on  the 
bench  to  proclaim  the  doctrine  that  national  laws 
pertaining  to  subject  matters  delegated  by  the  Consti- 

2.     Gibbons  v.  Ogden,  9  Wheat. 
(U.  S.)    1,  6  L.  Ed.  23. 


6  Control    Over    Common    Carriers  [§  2 

tutioii  to  Congress  are  supreme  in  their  sphere  and 
that  when  state  laws  come  into  conflict  with  an  act 
of  Congress  enacted  in  pursuance  to  the  Constitution, 
they  do  not  aifect  the  subject  matter  and  each  other 
like  equal  opposing  powers,  but  the  federal  is  exclusive 
and  supreme.  "The  subject  to  which  the  power  is 
next  applied,"  said  Chief  Justice  Marshall,  "is  to 
commerce  'among  the  several  States.'  The  word 
'among'  means  intermingled  with.  A  thing  which  is 
among  others,  is  intermingled  with  them.  Commerce 
among  the  States,  cannot  stop  at  the  external  bound- 
ary line  of  each  State,  but  may  be  introduced  into 
the  interior.  It  is  not  intended  to  say  that  these  words 
comprehend  that  commerce  which  is  completely  in- 
ternal, which  is  carried  on  between  man  and  man  in 
a  State,  or  between  different  parts  of  the  same  State, 
and  which  does  not  extend  to  or  affect  other  States. 
Such  a  power  would  be  inconvenient,  and  is  certain- 
ly unnecessary.  Comprehensive  as  the  word  'among' 
is,  it  may  very  properly  be  restricted  to  that  commerce 
which  concerns  more  States  than  one.  The  phrase  is 
not  one  which  would  probably  have  been  selected  to 
indicate  the  completely  interior  traffic  of  a  State, 
because  it  is  not  an  apt  phrase  for  that  purpose;  and 
the  enumeration  of  the  particular  classes  of  commerce 
to  which  the  power  was  to  be  extended,  would  not 
have  been  made,  had  the  intention  been  to  extend  the 
power  to  every  description.  The  enumeration  pre- 
supposes something  not  enumerated;  and  that  some- 
thing, if  we  regard  the  language,  or  the  subject  of 
the  sentence,  must  be  the  exclusively  internal  com- 
merce of  a  State.  The  genius  and  character  of  the 
whole  government  seem  to  be,  that  its  action  is  to  be 
applied  to  all  the  external  concerns  of  the  nation,  and 
to  those  internal  concerns  which  affect  the  States 
generally;  but  not  to  those  which  are  completely  with- 
in a  particular  State,  which  do  not  affect  other  States, 
and  with  which  it  is  not  necessary  to  interfere,  for  the 
purpose  of  executing  some  of  the  general  powers  of 
the   government.     The    completely    internal    commerce 


§  2]  Trii.  (V)jMmf.rce  Clai-sk.  7 

of  a  State,  then,  may  be  considered  as  reserved  for  the 
State  itself.  *  *  *  Since,  however,  in  exercisinj? 
the  power  of  reii;-iilatiii^  tlieir  own  purely  internal  af- 
fairs, whether  of  trading  or  police,  the  States  may 
sometimes  enact  laws,  the  validity  of  which  depends  on 
their  interfering  with,  and  being  contrary  to,  an  act 
of  congress  passed  in  pursuance  of  the  constitution, 
the  court  will  enter  upon  the  inquiry,  whetlier  the  laws 
of  New  York,  as  expounded  by  the  highest  tribunal 
of  that  State,  have,  in  their  application  to  this  case, 
come  into  collision  with  an  act  of  congress,  and  de- 
prived a  citizen  of  a  right  to  which  that  act  entitles 
him.  Should  this  collision  exist,  it  will  be  immaterial 
whether  those  laws  were  passed  in  virtue  of  a  concur- 
rent power  'to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,'  or,  in  virtue  of  a  power 
to  regulate  tlieir  domestic  trade  and  police.  In  one 
case  and  the  other,  the  acts  of  New  York  must  yield 
to  the  law  of  congress;  and  the  decision  sustaining 
the  privilege  they  confer,  against  a  right  given  by  a 
law  of  the  Union,  must  be  erroneous!  This  opinion 
has  been  frequently  ex]iressed  in  this  court,  and  is 
founded  as  well  on  the  nature  of  the  government  as 
on  the  words  of  the  constitution.  In  argument,  how- 
ever, it  has  been  contended  that,  if  a  law  passed  by 
a  State,  in  the  exercise  of  its  acknowledged  sovereign- 
ty, comes  into  conflict  with  a  law  passed  by  congress 
in  pursuance  of  the  constitution,  they  affect  the  sub- 
ject, and  each  other,  like  equal  opposing  powers.  But 
the  framers  of  our  constitution  foresaw  this  state  of 
things,  and  provided  for  it  by  declaring  the  supremacy 
not  only  of  itself,  but  of  the  laws  made  in  pursuance 
of  it.  The  nullity  of  any  act,  inconsistent  witli  the 
constitution,  is  produced  by  the  declaration  that  the 
constitution  is  the  supreme  law.  The  appropriate  ap- 
plication of  that  part  of  the  clause  which  confers  the 
same  supremacy  on  laws  and  treaties,  is  to  such  acts 
of  the  state  legislatures  as  do  not  transcend  their 
powers,  interfere  with,  or  are  contrary  to  the  laws  of 
congress,   made    in   pursuance    of   the    constitution,    or 


8  CoNTEOL    Over    Common    Caeriers  [§  2 

some  treaty  made  under  the  authority  of  the  United 
States.  In  every  such  case,  the  act  of  congress,  or  the 
treaty,  is  supreme;  and  the  law  of  the  State,  though 
enacted  in  tlie  exercise  of  powers  not  controverted, 
must  yield  to  it." 

§  3.  Judicial  Definitions  of  Term  "Interstate  Com- 
merce"   as    Used    in   the    Federal    Constitution.      The 
words  ''commerce  among  the  states,"  found  in  the  third 
paragraph  of  section  8  of  article  1  of  the  federal  Consti- 
tution  are   not   defined   in    that   instrument.      As    new 
agencies  of  commerce  and  modes  of  business  between 
the   states   are  developed   and   discovered   which  were 
unknown  to  former  generations,  no   adequate  and  ex- 
act definition  of  the  phrase  is  possible;  but  its  mean- 
ing has  been  fairly  established  and  can  be  arrived  at 
from  the  inclusive  and  exclusive  definitions  which  have 
been   given  it   from   time   to  time   in   the   decisions   of 
the  national  courts.    That  the  term  "commerce"  should 
be  confined  to  its  primary  and  etymological  meaning 
— exchange  of  or  trade  in  goods,  wares  and  merchandise 
— was  early  rejected  by  the  Supreme   Court  with   the 
comment  that  it  was  something  more   than  the   mere 
traffic  in  goods,  that  it  described  the  commercial  inter- 
course  between   nations,    and   parts    of   nations   in   all 
its  branches  and  is  regulated  by  prescribing  rules  for 
carrying  on  that  intercourse.^ 

Every  negotiation,  contract,  trade  or  dealing  be- 
tween citizens  of  different  states  which  contemplates 
and  causes  importation  from  one  state  to  another, 
whether  it  be  of  goods,  persons  or  information,  is  a 
transaction     of     interstate     commerce.*   A     definition 

3.  Gibbons  v.  Ogden,  9  Wheat.  Northern  Securities  Co.  v.  United 
(U.  S.)   1,  6  L.  Ed.  23.  States,  193  U.  S.  197,  48  L.  Ed.  679, 

4.  West  V.  Kansas  Natural  Gas  24  Sup.  Ct.  430;  Champion  v. 
Co.,  221  U.  S.  229,  55  L.  Ed.  716,  Ames,  188  U.  S.  321,  47  L.  Ed.  492, 
31  Sup.  Ct.  564,  35  L.  R.  A.  (N.  S.)  23  Sup.  Ct.  321;  Caldwell  v.  North 
1193;  International  Text  Book  Carolina,  187  U.  S.  622,  47  L.  Ed. 
Co.  V.  Pigg,  217  U.  S.  91,  54  L.  336,  23  Sup.  Ct.  229;  Hanley  v. 
Ed.  678,  30  Sup.  Ct.  481,  27  L.  R.  Kansas  City  Southern  Ry.  Co.,  187 
A.  (N.  S.)  493,  18  Ann.  Cas.  1103;  U.  S.  617,  47  L.  Ed.  333,  23  Sup. 


§  3.1 


Thl'  Commki^ce  Clause, 


frequently  approved  is  the  following:  ''Commerce 
with  foreign  countries  and  among  the  states  strict- 
ly considered,  consists  in  intercourse  and  traffic,  in- 
cluding in  these  terms  navigation  and  the  transporta- 
tion and  the  transit  of  persons  and  property,  as  well 
as  the  purchase,  sale  and  exchange  of  commodities."' 
The  term  comprehends  not  only  the  exchange  and 
transportation  of  persons,  commodities  or  visible  tangi- 
ble things,  but  also  the  transmission  by  telegraph  and 


Ct.  214;    Lindsay  &  Phelps  Co.  v. 
MuUen,  176  U.  S.  126,  44  U  Ed.  400. 
20    Sup.    Ct.   325;     Addyston    Pipe 
&  Steel  Co.  V.  United  States,  175 
U.   S.   211,  44   L.   Ed.   136,  20   Sup. 
Ct.  96;    Hopkins  v.  United  States, 
171   U.   S.   578,   43   L.   Ed.    290,    19 
Sup.  Ct.  40;   United  States  v.  Joint- 
Traffic  Ass'n,  171  U.  S.  505,  43  L. 
Ed.    259,   19    Sup.   Ct.    25;     United 
States    V.    Trans-Missouri    Freight 
Ass'n,    166    U.    S.    290,    41    L.    Ed. 
1007,  17  Sup.  Ct.  540;    Henderson 
Bridge  Co.  v.  Com.,  166  U.  S.  150. 
41    L.    Ed.    953,   17    Sup.    Ct.    532; 
Western  U.  Tel.  Co.  v.  James,  162 
U.  S.  650,  40  L.  Ed.  1105,  16  Sup. 
Ct.    934;     United    States   v.    E.    C. 
Knight    Co.,    156    U.    S.    1,    39    U 
Ed.    325,    15    Sup.    Ct.    249;     Cov- 
ington &  C.  Bridge  Co.  "v.  Com.,  154 
U.  S.  204,  38  L.  Ed.  962,  14  Sup. 
Ct.  1087;    Lehigh  Valley  R.  Co.  v. 
Pennsylvania,    145    U.    S.    192,    36 
L.  Ed.  672.  12  Sup.  Ct.  806;    Nor- 
folk &  W.  R.  Co.  V.  Pennsylvania, 
136   U.   S.   114     34    L.   Ed.    394,   10 
Sup.  Ct.  958;    McCall  v.  California, 
136   U.    S.   104.   34   L.   Ed.    391.    10 
Sup.  Ct.  881;    Leisy  v.  Hardin.  135 
U.   S.   100,  34   L.   Ed.  128,   10   Sup. 
Ct.  681;    Kidd  v.  Pearson,  128  U. 
S    1,  32  L.  Ed.  346.  9  Sup.  Ct.  6; 
Bowman  v.  Chicago  &  N.  W.  Ry. 
Co..  125  U.  S.  465,  31  L.  Ed.  700,  8 
Sup.    Ct.    689:       Woptcrn    V.    Tel. 


Co.  v.  Pendleton,  122  U.  S.  347, 
30  L.  Ed.  1187,  7  Sup.  Ct.  1126; 
Philadelphia,  &  Southern  S.  S. 
Co.  v.  Pennsylvania,  122  U.  S.  326, 
30  L.  Ed.  1200,  7  Sup.  Ct.  1118; 
Robbins  v.  Shelby  County  Tax- 
ing Dist,  120  U.  S.  489,  30  L.  Ed. 
694,  7  Sup.  Ct.  592;  Gloucester 
Ferry  Co.  v.  State,  114  U.  S.  196, 
29  L.  Ed.  158,  5  Sup.  Ct.  826;^ 
County  of  Mobile  v.  Kimball.  102 
U.  S.  691,  26  L.  Ed.  238;  Pensacola 
Tel.  Co.  v.  Western  U.  Tel.  Co.,  96 
U.  S.  1,  24  L.  Ed.  708;  Hannibal 
&  St.  J.  R.  Co.  V.  Husen,  95  U.  S. 
465,  24  L.  Ed.  527;  Welton  v. 
State,  91  U.  S.  275,  23  L.  Ed.  347; 
Chicago  &  N.  W.  Ry.  Co.  v.  Fuller, 
17  Wall.  (U.  S.)  560,  21  L.  Ed. 
710;  Philadelphia  &  R.  R.  Co.  v. 
Com..  15  Wall.  (U.  S.;,  232.  21  L. 
Ed.  146;  United  States  v.  Tucker, 
188  Fed.  741;  Butler  Bros.  Shoe 
Co.  V.  United  States  Rubber  Co., 
84  C.  C.  A.  167,  156  Fed.  1. 

5.  Addyston  Pipe  &  Steel  Co. 
V.  United  States,  175  U.  S.  211, 
44  L.  Ed.  136,  20  Sup.  Ct.  96;  Mc- 
Cali  V.  California,  136  U.  S.  104. 
34  L.  Ed.  391,  10  Sup.  Ct.  881: 
Kidd  V.  Pearson,  128  U.  S.  1.  32  L. 
Ed.  346.  9  Sup.  Ct.  6:  Gloucester 
Ferry  Co.  v.  State,  114  U.  S.  196. 
29  L.  Ed.  158,  5  Sup.  Ct.  826;  Coun- 
ty of  Mobile  v.  Kimball.  102  U.  S. 
691.  26  L.  Ed.  238. 


10  Control  Over  Common  Carriers  [§  3 

telephone  of  ideas,  wishes,  orders  and  intelligence." 
If  any  commercial  transaction  reaches  an  entirety  in 
two  or  more  states,  and  if  the  parties  dealing  with 
reference  to  that  transaction  deal  from  different  states, 
then  the  whole  transaction  is  a  part  of  interstate  com- 
merce of  the  United  States.'  No  trade  can  be  carried 
on  between  the  states  to  which  the  power  of  Congress 
to  regulate  interstate  commerce  does  not  extend.^  For 
example,  a  contract  for  the  sale  of  merchandise  which 
contemplates  the  transportation  of  such  merchandise 
from  one  state  to  another,  is  a  transaction  of  interstate 
commerce.® 

§  4.  Transportation  from  one  State  to  Another  an 
Essential  Element  of  Interstate  Commerce.  While  com- 
merce between  the  states  covers  a  multitude  of  trans- 
actions and  subject  matters,  actual  transportation  of 
either  persons  or  property  or  transmission  of  intelli- 
gence, from  a  point  in  one  state  to  a  point  in  another 
or  to  a  foreign  country  by  land  or  water,  is  an  essential 
element  of  the  commerce  within  federal  control.'"     An 

6  Champion  v.  Ames,  188  U.  v  Pigg,  217  U.  S.  91,  54  L.  Ed. 
S.  321,  47  L.  Ed.  492,  23  Sup.  Ct.  678,  30  Sup.  Ct.  481,  27  L.  R.  A. 
321;  Ratterman  v.  Western  U.  (N.  S.)  493,  18  Ann.  Cas.  1103; 
Tel'  Co  127  U.  S.  411,  32  L.  Ed.  Ware  &  Leland  Co.  v.  Mobile  Coun- 
229,  8  Sup.  Ct.  1127;  Western  U.  ty,  209  U.  S.  405,  52  L.  Ed.  855, 
Tel'  Co.  V.  Pendleton,  122  U.  S.  28  Sup.  Ct.  526.  14  Ann.  Cas.  1031; 
347  30  L-  Ed.  1187,  7  Sup.  Ct,  Fairbank  v.  United  States,  181  U. 
^^26  S-  283,  45  L.  Ed.  862,  21  Sup.  Ct. 

7  In  re  Charge  to  Grand  Jury,  648;  Williams  v.  Fears,  179  U.  S. 
151  Fed.  834;  United  States  v.  270,  45  L.  Ed.  186,  21  Sup.  Ct.  128; 
Swift  &  Co.,  122  Fed.  529.  Hopkins  v.   United   States,   171   U. 

8.  Hipolite  Egg  Co.  v.  United  S.  578,  43  L.  Ed.  290,  19  Sup.  Ct. 
States,  220  U.  S.  45,  55  L.  Ed.  364,  40;  Noble  v.  Mitchell,  164  U.  S. 
31    Sup.   Ct.   364.  367,  41  L.  Ed.  472,  17  Sup.  Ct.  110; 

9.  Royster  Guano  Co.  v.  Cole,  Hooper  v.  State,  155  U.  S.  648,  39 
115  Me.  387,  99  Atl.  33.  L.  Ed.  297,  15  Sup.  Ct.  207;  Pacific 

10      New  York  Life  Ins.  Co.  v.  Exp.  Co.  v.  Seibert,  142  U.  S.  339, 

Deer  Lodge  County,  231  U.  S.  495,  35  L.   Ed.   1035,   12    Sup.   Ct.   250; 

58    L    Ed.    332,    34    Sup.    Ct.    167;  Robbins  v.  Shelby  County  Taxing 

United  States  Fidelity  &  Guaranty  Dist.,  120  U.  S.  489,  30  L.  Ed.  694, 

Co.  of  Baltimore  v.  Com.,  231  U.  7  Sup.  Ct.  592;    Philadelphia  Fire 

S    394,  58  L.  Ed.  283.  34  Sup.  Ct.  Ass'n.  v.  People,  119  U.  S.  110,  30 

122;    international  Text  Book  Co.  L.  Ed.  342,  7  Sup.  Ct.  108;   Hanni- 


agent  of  a  railroad  company,  for  example,  residing  in 
San  Francisco  and  soliciting  passengers  for  a  railroad 
running  between  Chicago  and  New  York,  was  held  to 
be  engaged  in  interstate  commerce."  A  "drummer" 
engaged  in  taking  orders  for  goods  from  samples  for 
his  employer  in  another  state,  is  engaged  in  interstate 
commerce  when  such  orders  are  transmitted  to  the  other 
state  and  the  sale  is  consummated  by  the  transportation 
of  the  lu-operty  to  the  buyer.*-  intercourse  between 
a  text-book  company  conducting  a  correspondence 
school,  and  its  agents  and  scholars  in  other  states,  which 
involved  the  transportation  of  books,  apparatus  and 
papers  from  the  state  where  the  school  was  located  to 
the  state  where  the  students  resided,  constituted  com- 
merce between  the  states.'^  The  carriage  from  one 
state  to  another  of  lottery  tickets,  is  within  the  federal 
commerce  clause."  Persons  travelling  from  place  to 
place  within  a  state  taking  orders  for  the  delivery  of 
goods  and  transmitting  them  to  the  manufacturer  in 
another  state  to  be  delivered  in  fulfillment  of  such 
orders,  and  which  are  in  fact  shipped  and  delivered 
to  the  persons  ordering  them,  are  engaged  in  interstate 

bal  &  St.  J.  R.  Co.  V.  Husen,  95  U.  430,    15    Sup.   Ct.   367;     Fickleii    v. 

S.  465,  24  L.  Ed.  527.  Shelby  County  Taxing  Dist.,  145  U. 

11.  McCall  V.  California,  136  U.  S.  1,  36  L.  Ed.  601,  12  Sup.  Ct. 
S.  104,  34  L.  Ed.  391,  10  Sup  Ct.  810;  Stoutenburgh  v.  Hennick,  129 
881.  U.  S.  141,  32  L.  Ed.  637,  9  Sup.  Ct. 

12.  Davis  V.  Com.,  236  U.  S.  697,  256;  Asher  v.  Texas,  128  U.  S. 
59  L.  Ed.  795,  35  Sup.  Ct.  479;  129,  32  L.  Ed.  368,  9  Sup.  Ct.  1; 
Singer  Sewing  Machine  Co.  v.  Leloup  v.  Port  of  Mobile,  127  U.  S. 
Brickell,  233  U.  S.  304,  58  L.  Ed.  640,  32  L.  Ed.  311.  8  Sup.  Ct.  1380: 
974,  34  Sup.  Ct.  493;  Browning  v.  Corson  v.  Maryland,  120  U.  S.  502, 
City  of  Waycross,  233  U.  S.  16,  30  L.  Ed.  699,  7  Sup.  Ct.  655;  Rob- 
58  L.  Ed.  828,  34  Sup.  Ct.  578;  bins  v.  Shelby  County  Taxing  Dist. 
Banker  Bros.  Co.  v.  Common-  120  U.  S.  489,  30  L.  Ed.  694,  7 
wealth,   222   U.   S.   210,   56   L.   Ed.  Sup.  Ct.  592. 

168,   32    Sup.   Ct.   38;    Caldwell   v.  13.    International  Text-Book  Co. 

North  Carolina,  187  U.  S.  622,  47  v.  Pigg,  217  U.  S.  91,  54  L.  Ed.  678, 

L.  Ed.  336,  23  Sup.  Ct.  229;  Stock-  30  Sup.  Ct.  481,  27  L.  R.  A.  (N.  S.) 

ard   V.    Morgan,    185   U.   S.    27,   46  493,  18  Ann.  Cas.  1103. 

L.  Ed.  785,  22  Sup.  Ct.  576;  Emert  14.    Lottery  Case,  188  U.  S.  321, 

V.   State,  156   U.   S.  296,   39   L.  Ed.  47  L.  Ed.  492,  23  Sup.  Ct.  321. 


12 


Control  Over  Common  Carriers 


[^  4 


commerce.''  The  transportation  of  natural  gas  from 
one  state  to  another  is  interstate  commerce.'^ 
But,  on  the  other  hand,  policies  of  insurance  is- 
sued by  a  company  in  one  state  to  a  person  in  another 
state,  do  not  constitute  interstate  commerce  trans- 
actions although  the  premiums  thereon  are  transmitted 
from  one  state  to-  another,  for  policies  of  insurance  are 
not  the  subject  of  trade  and  barter  and  are  not  com- 
modities to  be  shipped  or  forwarded  from  one  state  to 
another.''  Similarly  brokers  who  take  orders  on  com- 
mission for  the  purchase  and  sale  of  grain  or  cotton, 


15.  Rogers  v.  State,  227  U.  S. 
401,  57  L.  Ed.  569,  33  Sup.  Ct.  298; 
Crenshaw  v.  State,  227  U.  S.  389,  57 
L.  Ed.  565,  33  Sup.  Ct.  ?M;  Dozier 
V.  State,  218  U.  S.  124,  54  L.  Ed. 
965,  30  Sup.  Ct.  649,  28  L.  R.  A.  (N. 
S.)  264. 

16.  West  V.  Kansas  Natural  Gas 
Co.,  221  U.  S.  229,  55  L.  Ed.  716, 
31  Sup.  Ct.  564,  35  L.  R.  A.  (N.  S.) 
1193;  Manufacturers'  Gas  &  Oil  Co. 
V.  Indiana  Natural  Gas  &  Oil  Co., 
156  Ind,  679,  59  N.  E.  169,  60  N.  E. 
1080;  State  ex  rel.  Corwin  v.  In- 
diana &  Ohio  Oil,  Gas  &  Mining 
Co.,  120  Ind.  575,  6  L.  R.  A.  579, 
22  N.  E.  778. 

17.  New  York  Life  Ins.  Co.  v. 
Deer  Lodge  County,  231  U.  S.  495, 
58  L.  Ed.  332,  34  Sup.  Ct.  167;  New 
York  Life  Ins.  Co.  v.  Cravens,  178 
U.  S.  389,  44  L.  Ed.  1116,  20  Sup. 
Ct.  962;  Hooper  v  California,  155 
U.  S.  648,  39  L.  Ed.  297,  15  Sup. 
Ct.  207;  Philadelphia  Fire  Ass'n.  v. 
People,  119  U.  S.  110,  30  L.  Ed.  342, 
7  Sup.  Ct.  108;  Liverpool  &  L.  Life 
&  Fire  Ins.  Co.  v.  Massachusetts, 
10  Wall.  566,  19  L.  Ed.  1029;  Ducat 
V.  Chicago,  10  Wall.  410,  19  L.  Ed. 
972;  Paul  v.  Virginia,  8  Wall.  168, 
19  L.  Ed.  357. 

"Issuing  a  policy  of  insurance  is 
not  a  transaction  of  commerce.  The 
policies  are  simple  contracts  of  in- 


demnity against  loss  by  fire,  enter- 
ed into  between  the  corporations 
and  the  assured,  for  a  considera- 
tion paid  by  the  latter.  These 
contracts  are  not  articles  of  com- 
merce in  any  proper  meaning  of 
the  word.  They  are  not  subjects 
of  trade  and  barter  offered  in  the 
market  as  something  having  an 
existence  and  value  independent 
of  the  parties  to  them-.  They  are 
not  commodities  to  be  shipped  or 
forwarded  from  one  State  to  an- 
other, and  then  put  up  for  sale. 
They  are  like  other  personal  con- 
tracts between  parties  which  are 
completed  by  ther  signature  and 
the  transfer  of  the  consideration. 
Such  contracts  are  not  interstate 
transactions,  though  the  parties 
may  be  domiciled  in  different 
States.  The  policies  do  not  take  ef- 
fect— are  not  executed  contracts — 
until  delivered  by  the  agent  in 
Virginia.  They  are,  then,  local 
transactions,  and  are  governed  by 
the  local  law.  They  do  not  consti- 
tute a  part  of  the  commerce  be- 
tween the  States  any  more  than  a 
contract  for  the  purchase  and  sale 
of  goods  in  Virginia  by  a  citizen 
of  New  York  whilst  in  Virginia 
would  constitute  a  portion  of  such 
commerce."  Paul  v.  Virginia, 
supra. 


§  4]  Thk  Commerce  Clax'se.  13 

and  transmit  tliem  to  otlior  states  to  ])e  consnmmated, 
are  not  thereby  engaged  in  interstate  commerce  when 
no  actual  shipments  of  grain  from  one  state  to  another 
are  involved. ^^  Manufacture  and  ]u-oduction  of  com- 
modities do  not  constitute  interstate  commerce  trans- 
actions, for  tlie  function  of  manufacture  is  the  trans- 
formation of  raw  material  into  a  change  of  form  for 
use,  while  commerce  includes  the  buying  and  selling 
and  the  transportation  incidental  thereto  of  commodi- 
ties from  one  state  to  another.^^  Persons  engaged  as 
agents  in  hiring  laborers  to  be  employed  beyond  the 
limits  of  the  state  are  not  thereby  engaged  in  interstate 
commerce  even  though  transportation  must  eventually 
take  place  as  the  result  of  such  employment,  because 
the  business  of  hiring  laborers  is  not  so  immediately 
connected  with  interstate  transportation  or  traffic  that 
it  could  be  correctly  said  that  those  who  followed  it 
were  engaged  in  interstate  commerce. -°  Sales  of  stock 
and  bonds  which  do  not  contemplate  or  have  anything 
to  do  with  the  transportation  of  property  from  one  state 
to  another,  are  not  interstate  commerce  transactions 
although  the  parties  to  such  sales  are  residents  of 
different  states.-^  A  broker  dealing  in  foreign  bills 
of  exchange  is  not  thereby  engaged  in  foreign  commerce 
within  the  commerce  clause  of  the  Constitution.--  Per- 
is. Ware  &  Leland  Co  v.  IMobile  123  U.  S.  623.  31  L.  Ed.  205,  S  Sup. 
County,  209  U.  S.  405,  52  L.  Ed.  855.  Ct.  273;  McCready  v.  Virginia,  94 
28  Sup.  Ct.  526,  14  Ann.  Cas.  1031.       U.  S.  391,  24  L.  Ed.  248. 

19.    Northern    Securities   Co.   v.  20.    Williams    v.    Fears,    179    U. 

United    States,    193    U.    S.    197.    48       s.  270,  45  L.  Ed.  186,  21  Sup.  Ct. 
L.  Ed.  679,  24  Sup.  Ct.  436;    Dia-       128. 

mond   Glue   Co.   x.   United   States  21.     Brodnax  v.  State,  219  U    S 

Glue  Co.,  187  U.  S.  611,  47  L.  Ed.       285,  55  L.  Ed.  219,  31  Sup   Ct   238- 
328,  23  sup.  Ct    206;   capital  City       ^^^  ^ork  e.x  rel.  Hatch  v.  Rear'- 

?r;^?-.:;  Tl'       rt    1  20     Ad  ^-'  204  U.  S.  152.  51  L.  Ed.  415.  27 

46  L.  Ed.  171,  22  Sup.  Ct.  120    Ad- 

dyston  Pipe  &  Steel  Co.  v.  United  ^up.  Ct.  188,  9  Ann.  Cas.  736;Rear. 

States,  175  U.  S.  211,  44  L.  Ed.  136,  ^^^'  ^-  Com.,  203  U.  S.  507.  51  L.  Ed. 

20   Sup.   Ct.   9G;    United   States   v.  ^95,  27  Sup.  Ct.  159;   Woodruff  v. 

E.  C.  Knight  Co..  156  U.  S.  1,  39  Parham.    8    Wall.    123.    19    L.    Ed. 

L.  Ed.  325,  15  Sup.  Ct.  249;   Kidd  382. 

V.  Pearson,  128  U.  S.  1,  32  L.  Ed.  22.    Nathan  v.  Louisiana,  8  How. 

346.  9  Sup.  Ct.  6;  Mugler  v.  State,  (U.  S.)   73,  12  L.  Ed.  992. 


14 


Control  Over  Common  Carriers 


[§  -t 


sons  engaged  in  the  business  of  receiving  deposits  of 
money  for  safe  keeping  or  for  the  purpose  of  transmis- 
sion to  other  states  and  countries,  are  not  engaged  in  for- 
eign commerce,  for  the  receiving  of  deposits  which 
precedes  it,  must  not  be  confounded  with  a  later  trans- 
mission of  the  money  to  foreign  countries. ^^ 

§  5.  Congressional  Grant  "to  Regulate"  Com- 
merce Defined  and  Explained.  The  power  to  regulate 
interstate  and  foreign  commerce  granted  to  Congress 
under  the  commerce  clause,  has  been  given  a  compre- 
hensive meaning-*  and  includes  both  regulation  and 
prohibition."  It  has  been  defined  as  the  power  to 
prescribe  the  rules  by  which  commerce  shall  be  govern- 
ed, that  is,  the  conditions  upon  which  it  shall  be  con- 
ducted.-*^   It  includes  the  power  to  provide  the  law  for 


23.  Engel  v.  O'Malley,  219  U.  S. 
128,  55  L.  Ed.  128,  31  L.  Ed.  190. 

24.  Clark  Distilling  Co.  v.  Wes- 
tern Maryland  R.  Co.,  242  U.  S. 
311,  61  L.  Ed.  326,  37  Sup.  Ct.  180, 
L.  R.  A.  1917B  1218,  Ann.  Cas. 
1917B  845;  Texas  &  P.  Ry.  Co.  v. 
Rigsby,  241  U.  S.  33,  60  L.  Ed.  874, 
36  Sup.  Ct.  482;  Coppage  v.  State 
of  Kansas,  236  U.  S.  1,  59  L.  Ed. 
441,  35  Sup.  Ct.  240,  L.  R.  A.  1915C 
960;  City  of  Sault  Ste.  Marie  v. 
International  Transit  Co.,  234  U. 
S.  333,  58  L.  Ed.  1337,  34  Sup.  Ct. 
826,  52  L.  R.  A.  (N.  S.)  574;  Balti- 
more &  O.  R.  Co.  V.  Interstate 
Commerce  Commission,  221  U.  S. 
612,  55  L.  Ed.  878,  31  Sup.  Ct.  621; 
Adair  v.  United  States,  208  U.  S. 
161,  52  L.  Ed.  436,  28  Sup.  Ct.  277, 
13  Ann.  Cas.  764;  Atlantic  Coast 
Line  R.  Co.  v.  North  Carolina  Cor- 
poration Commission,  206  U.  S. 
1,  51  L.  Ed.  933,  27  Sup.  Ct.  585,  11 
Ann.  Cas.  398;  Reid  v.  Colorado, 
187  U.  S.  137,  47  L.  Ed.  108,  23 
Sup.  Ct.  92;  Addyston  Pipe  &  Steel 
Co.  V.  United  States,  175  U.  S.  211, 


44  L.  Ed.  136,  20  Sup.  Ct.  96; 
United  States  v.  Joint-Traffic  Ass'n. 
171  U.  S.  505,  43  L.  Ed.  259,  19 
Sup.  Ct.  25;  United  States  v.  Trans- 
Missouri  Freight  Ass'n.,  166  U.  S. 
290,  41  L.  Ed.  1007,  17  Sup.  Ct.  540; 
In  re  Rahrer,  140  U.  S.  545,  35  L. 
Ed.  572,  11  Sup.  Ct.  865;  Wabash, 
St.  L.  &  P.  Ry.  Co.  V.  People,  118 
U.  S.  557,  30  L.  Ed.  244,  7  Sup.  Ct. 
4;  Gloucester  Ferry  Co.  v.  State, 
114  U.  S.  196,  29  L.  Ed.  158,  5  Sup. 
Ct.  826;  Western  U.  Tel.  Co.  v. 
State,  105  U.  S.  460,  26  L.  Ed.  1067; 
Henderson  v.  Wickham,  92  U.  S. 
259,  23  L.  Ed.  543;  Welton  v.  State, 
91  U.  S.  275,  23  L.  Ed.  347. 

25.  Hoke  v.  United  States,  227 
U.  S.  308,  57  L.  Ed.  523,  33  Sup.  Ct. 
281,  43  L.  R.  A.  (N.  S.)  906,  Ann. 
Cas.  1913E  905;  Hipolite  Egg  Co. 
V.  United  States,  220  U.  S.  45,  55 
L.  Ed.  364,  31  Sup.  Ct.  364;  Lottery 
Case,  188  U.  S.  321,  47  L.  Ed.  492, 
23  Sup.  Ct.  321. 

26.  Northern  Securities  Co.  v. 
United  States,  193  U.  S.  197,  48  L. 
Ed.  679,  24  Sup.  Ct.  436;  Austin  v. 


§  5] 


Thk  Commkkce  Clause. 


15 


the  governmont  of  interstate  commerce  and  to  enact 
all  appropriate  legislation  for  the  welfare  of  those  who 
are  immediately  concerned, ^^  and  of  the  public  at 
large;-'*  to  adopt  measures  to  promote  the  growth  of 
commerce  and  to  insure  its  safety;-'  to  prescribe  the 
rules  not  only  for  the  carrying  on  of  commerce,  but, 
in  certain  instances,  to  absolutely  proliibit  it;'"'  to 
maintain  the  efficiency  of  interstate  transportation  upon 
fair  terms  and  without  molestation  or  hinderance.^^ 
This  power  of  regulation  not  only  applies  to  inter- 
state commerce  itself,  but  extends  to  and  embraces  all 
the  instrumentalities,  agencies  and  means  by  which 
such  commerce  is  carried  on.^-  It  is  not  confined  to 
the  instrumentalities  and  agencies  of  commerce  as  they 
were  known  or  in  use  when  the  Constitution  was  adopt- 


State,  179  U.  S.  343,  45  L.  Ed.  224, 
21  Sup.  Ct.  132;  United  States  v. 
Joint-Traffic  Ass'n.,  171  U.  S.  505, 
43  L.  Ed.  259,  19  Sup.  Ct.  25;  In- 
terstate Commerce  Commission  v. 
Brimson,  154  U.  S.  447,  38  L..  Ed. 
1047,  14  Sup.  Ct.  1125;  Picltard 
Pullman  Southern  Car  Co.,  117  U. 
S.  34,  29  L.  Ed.  785,  6  Sup.  Ct.  635; 
Walling  V.  People,  116  U.  S.  446,  29 
L.  Ed.  691,  6  Sup.  Ct.  454;  Glou- 
cester Ferry  Co.  v.  State,  114  U.  S. 
196.  29  L.  Ed.  158.  5  Sup.  Ct.  826; 
Webber  v.  Virginia,  103  U.  S.  334. 
26  L.  Ed.  565;  Gibbons  v.  Ogden,  9 
Wheat,  (U.  S.)  1,  6  L.  Ed.  23. 

27.  Wilson  v.  New,  243,  U.  S. 
332;  61  L.  Ed.  755,  37  Sup.  Ct. 
298;  Clark  Distilling  Co.  v.  Wes- 
tern Maryland  R.  Co.,  242  U.  S. 
311,  61  L.  Ed.  326,  37  Sup.  Ct.  180. 
L.  R.  A.  1917B  1218,  Ann.  1917B 
845;  Interstate  Commerce  Commis- 
sion V.  Brimson,  154  U.  S.  447,  38 
L.  Ed.  1047,  14  Sup.  Ct.  1125;  The 
Daniel  Ball  v.  United  States,  10 
Wall.  557,  19  L.  Ed.  999. 

28.  In  re  Second  Employers'  Lia- 
bility Cases,  223  U.  S.  1,  56  L.  Ed. 


327,   32   Sup.   Ct.   169,   38   L.   R.   A. 
(N.  S.)  44. 

29.  County  of  Mobile  v.  Kimball, 
102  U.  S.  691,  26  L.  Ed.  238. 

30.  Hipolite  Egg  Co.  v.  United 
States,  220  U.  S.  45,  55  L.  Ed. 
364,  31  Sup.  Ct.  364. 

31.  Houston,  East  &  West 
Texas  Ry.  Co.  v.  United  States, 
234  U.  S.  342.  58  L.  Ed.  1341,  34 
Sup.   Ct.   833. 

32.  Southern  R.  Co.  v.  United 
States,  222  U.  S.  20,  56  L.  Ed.  72. 
32  Sup.  Ct.  2;  Interstate  Com- 
merce Commission  v.  Detroit,  G. 
H.  &  M.  Ry.  Co.,  167  U.  S.  633,  42 
L.  Ed.  306,  17  Sup.  Ct.  986;  In  re 
Debs.  158  U.  S.  564,  39  L.  Ed.  1092. 
15  Sup.  Ct.  900;  Nashville,  C.  & 
St.  L.  Ry.  Co.  V.  Alabama,  128  U. 
S.  96.  32  L.  Ed.  352,  9  Sup.  Ct.  28; 
Smith  V.  Alabama,  124  U.  S.  465. 
31  L.  Ed.  508,  8  Sup.  Ct.  564; 
Western  U.  Tel.  Co.  v.  State,  105  U. 
S.  460.  26  L.  Ed.  1067;  Hall  v.  De 
Culr,  95  U.  S.  485.  24  L.  Ed.  547: 
State  Tonnage  Tax  Cases,  12  Wall. 
204,  20  L.  Ed.  370;  The  Daniel  Ball 
V.  United  States.  10  Wall.  557,  19 
L.  Ed.  999. 


16  CoNiK()i.  Over   Common  Carrieks  [§  5 

ed,  but  it  extends  from  tlie  sailing  vessel  to  the  steam- 
boat,'' from  the  stage-eoach  to  the  Pnllman  car/*  from 
the  messenger  to  the  telegraph''   and  wireless,''   from 
the   ox-cart    to   the    automobile,"    and   to    all    the   new 
agencies  of  interstate  commerce  as  they  are  successively 
brought  to  its  aid.''    The  power  of  Congress  to  regulate 
commerce  is  complete  in  itself,  is  not  dependent  on  and 
cannot  be  hampered  by  the  action  of  the   states,   and 
is  unrestrained  by  any  qualification  or  limitation  other 
that  such  as  are  prescribed  in  the  Constitution  itself.'" 
§  6.     Importation  of  Legitimate  Articles  of  Com- 
merce from  one  State  to  Another  Immune  from  State 
Legislation.     That  portion  or  part  of  commerce   with 
foreign  countries  and  between  the  states  which  consists 
of   the    transportation   and    exchange    of    commodities, 
that  is,  the  importation  of  legitimate  articles  of  com- 
merce from  one  state  to  another,  is  under  the  protection 
of   the    commerce    clause    of   the  .  federal    constitution. 
All  legitimate  articles  of  commerce,  therefore,  moving 
from  one  state  to  another  or  to  a  foreign  country  are 
protected  from  hostile  or  interfering  legislation  of  the 
states   from   the  commencement   of   the   transportation 
to   the  termination   of  the   movement."     For,   if   mer- 

33.  Gibbons  v.  Ogden,  9  Wheat.  tern  U.  Tel.  Co.,  96  U.  S.  1,  24  L. 
(U.  S.)   1,  6  L.  Ed.  23.  Ed.  708. 

34.  Allen  v.  Pullman's  Palace  39.  Wilson  v.  New,  243  U.  S. 
Car  Co.,  191  U.  S.  171,  48  L.  Ed.  332,  61  L.  Ed.  755,  37  Sup.  Ct.  298: 
134,  24  Sup.  Ct.  39;  Pullman  Co.  Gibbons  v.  Ogden,  9  Wheat,  (U. 
V.  Adams,  189  U.  S.  420,  47  L.  Ed.  S.)  1,  6  L.  Ed.  23. 

877    23  Sup    Ct    494;   Tennessee  v.  40.    Rosenberger  v.  Pacific  Exp. 

Pullman  Southern  Car  Co.,  117  U.       Co.,  241  U.  S.  48,  60  L.  Ed.  880,  36 
S   51   29  L  Ed   791,  6  Sup.  Ct.  643.       Sup.  Ct.  510;   Price  v.  People,  238 

or'    o^   T       •         w  cf^.,,  TT   T^«i        U.  S.  446,  59  L.  Ed.  1400.  35  Sup. 

35.  St.  Louis  V.  Western  U.  lei.  •  „        ^  ^ 

n      148TT   Q    q?    •??  T     Fd    380    13       ^^-  ^^^^   Adams  Exp.  Co.  v.  Com.. 
Co.,  148  U.  S.  92,  37  L.  Ed.  380    13       ^^^^  ^    ^    ^^^    ^^   ^    ^^    ^^67,   35 

Sup.    Ct.    485;    Leloup   v.    Port   of  ^^^^     ^^     ^^4,    Ann.    Cas.    1915D 

Mobile.  127  U.  S.  640,  32  L.  Ed.  311,  ^^^^.   ^^^^^  ^    ^^^^  ^  238  U.  S.  62, 

8  Sup.  Ct.  1380.  59  ^    ^^    ^201,   35    Sup.   Ct.   677; 

36.  Act  approved  June  18,  1910,  Kirmeyer  v.  State,  236  U.  S.  568, 
36  Stat,  at  L.  539.  59    j,    Ed.    721,    35    Sup.    Ct.    419; 

37.  Hendrick  v.  State,  235  U.  S.  Mutual  Film  Corporation  of  Mis- 
610,  59  L.  Ed.  385,  35  Sup.  Ct.  140.  souri  v.  Hodges,  236  U.  S.  248,  59 

38.  Pensacola  Tel.    Co.   v.   Wes-  L.  Ed.  561,  35  Sup.  Ct.  393;    Hey- 


§  G 


Tjir.  (.'oMJMEfUK  Cj.alse. 


17 


eliaudiso,  recognized  as  legitimate  articles  of  commerce 
and  shipped  in  interstate  or  foreif^n  commerce,  can  be 
subjected  to  any  restrictions  by  state  legislation  before 
it  is  ming'led   witli   and   l)ecomes  a   part   of  tlie  general 


man  v.  Hays,  236  V.  S.  178.  59 
L.  Ed.  527;  35  Sup.  Ct.  403;  People 
ex  rel.  Cornell  Steamboat  Co.  v. 
Sohmer,  235  U.  S.  549,  59  L.  Ed. 
355,  35  Sup.  Ct.  162;  South  Coving- 
ton &  C.  St.  R.  Co.  V.  City  of  Cov- 
ington, 235  U.  S.  537,  59  L.  Ed.  350, 
35  Sup.  Ct.  158,  L.  R.  A.  1915F 
792;  St.  Louis  Southwestern  R.  Co. 
V.  State,  235  U.  S.  350,  59  L.  Ed. 
265,  35  Sup.  Ct.  99;  Sioux  Remedy 
Co.  V.  Cope,  235  U.  S.  197,  59  L.  Ed. 
193,  35  Sup.  Ct.  57;  Browning  v. 
City  of  Waycross,  233  U.  S.  16, 
58  L.  Ed.  828,  34  Sup.  Ct.  578; 
Stewart  v.  People.  232  U.  S.  665, 
58  L.  Ed.  786,  34  Sup.  Ct.  476;  Ohio 
River  &  W.  Ry.  Co.  v.  Dittey,  232 
U.  S.  576,  58  L.  Ed.  737,  34  Sup. 
Ct.  372;  D.  E.  Foote  &  Co.  v.  Stan- 
ley, 232  U.  S.  494,  58  L.  Ed.  698, 
34  Sup.  Ct.  377;  Louisville  &  N.  R. 
Co.  V.  F.  W.  Cook  Brewing  Co.,  223 
U.  S.  70,  56  L.  Ed.  355,  32  Sup.  Ct. 
189;  Dozier  v.  State,  21S  U.  S.  124, 
54  L.  Ed.  965.  30  Sup.  Ct.  649,  28 
L.  R.  A.  (N.  S.)  264;  Adams  Exp. 
Co.  V.  Com.,  214  U.  S.  218.  53  L. 
Ed.  972,  29  Sup.  Ct.  633;  Heymann 
v.  Southern  R.  Co.,  203  U.  S.  270,  51 
L.  Ed.  178,  27  Sup.  Ct.  104;  Ameri- 
can Exp.  Co.  v.  Iowa,  196  U.  S. 
133,  49  L.  Ed.  417,  25  Sup.  Ct.  182; 
Caldwell  v.  North  Carolina,  187  U. 
S.  622,  47  L.  Ed.  336,  23  Sup.  Ct. 
229;  Austin  v.  State.  179  U.  S.  343, 
45  L.  Ed.  224,  21  Sup.  Ct.  132; 
Rhodes  v.  State,  170  U.  S.  412,  42 
L.  Ed.  1088,  18  Sup.  Ct.  664;  Bow- 
man V.  Chicago  &  N.  W.  Ry.  Co., 
125  U.  S.  465.  31  L.  Ed.  700,  8  Sup. 
Ct.   689,   1062. 


"It  i.s  also  certain  that  thf^  set- 
tled doctrine  is  that  the  power  to 
ship  merchandise  from  one  State 
into  another  carries  with  it,  as  an 
incident,  the  right  in  the  receiver 
of  the  goods  to  sell  them  in  the 
original  packages,  any  state  regu- 
lation to  the  contrary  notwith- 
standing; that  is  to  say,  that  the 
goods  received  by  Interstate  Com- 
merce remain  under  the  shelter 
of  the  Interstate  Commerce  clause 
of  the  Constitution,  until  by  a 
sale  in  the  original  package  they 
have  been  commingled  with  the 
general  mass  of  property  in  the 
State."  Vance  v.  W.  A.  Vander- 
cook  Co..  179  U.  S.  438,  42  L.  Ed. 
1100,  18  Sup.  Ct.  674. 

"At  this  late  day  it  is  not  nec- 
essary to  cite  cases  to  thow  that 
the  right  to  engage  in  interstate 
commerce  is  not  the  gift  of  a 
State,  and  that  it  cannot  be  regu- 
lated by  a  State,  or  that  a  State 
cannot  exclude  from  its  limits 
a  corporation  engaged  in  such 
commerce."  West  v.  Kansas  Nat- 
ural Gas  Co..  221  U.  S.  229,  55  L. 
Ed.  716,  31  Sup.  Ct.  564,  ?5  L.  R.  A. 
(N.  S.)  1193. 

"Those  cases  rested  upon  the 
broad  principle  of  the  freedom  of 
commerce  between  the  States  and 
of  the  right  of  a  citizen  of  one 
State  to  freely  contract  to  receive 
merchandise  from  another  State, 
and  of  the  equal  right  of  the 
citizen  of  a  State  to  contract  to 
send  merchandise  into  other 
States."  American  Exp.  Co.  v. 
Iowa,  196  U.  S.  133,  49  L.  Ed.  417, 
25  Sup.  Ct.  182. 


1     CiMilrol    CarrliT? 


18 


Control  Over  Common  Carriers 


[§  6 


property  of  the  state,  the  object  of  investing  the  con- 
trol in  Congress  over  interstate  and  foreign  commerce 
would  be  entirely  destroyed/^  It  follows  that  the 
states  cannot  levy  taxes  on  interstate  and  foreign  com- 
merce in  any  form  by  imposing  it  either  upon  the  busi- 
ness which  constitutes  such  commerce,  or  the  privilege 
of  engaging  in  it,  or  upon  the  receipts  as  such  derived 
from  it.^-  A  person  engaging  in  interstate  commerce 
cannot  be  compelled  by  a  state  or  municipality  to  take 
out  a  local  license  for  the  mere  privilege  of  carrying 
on  interstate  or  foreign  commerce." 


41.  City  of  Sault  Ste.  Marie  v. 
International  Transit  Co.,  234  U.  S. 
333,  58  L.  Ed.  1337,  34  Sup.  Ct.  826, 
52  L.  R.  A.  (N.  S.)  574;  Crutcher  v. 
Kentucky,  141  U.  S.  47,  35  L.  Ed. 
649,  11  Sup.  Ct.  851;  Philadelphia 

6  Southern  S.  S.  Co.  v.  Pennsyl- 
vania, 122  U.  S.  326,  30  L.  Ed.  1200, 

7  Sup.  Ct.  1118;  Robbins  v.  Shelby 
County  Taxing  Dist.  120  U.  S.  489, 
30  L.  Ed.  694,  7  Sup.  Ct.  592;  Wel- 
ton  V.  State,  91  U.  S.  275,  23  L. 
Ed.   347. 

42.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.  V.  Botkin,  240  U.  S.  227,  60  L. 
Ed.  617,  36  Sup.  Ct.  261;  People 
ex  rel.  Cornell  Steamboat  Co.  v. 
Sohmer,  235  U.  S.  549,  59  L.  Ed. 
355,  35  Sup.  Ct.  162;  St.  Louis 
Southwestern  R,  Co.  v.  State,  235 
U.  S.  350,  59  L.  Ed.  265,  35  Sup. 
Ct.  99;  Chicago,  M.  &  St.  P.  R.  Co. 
V  Iowa,  233  U.  S.  334,  58  L.  Ed. 
988,  34  Sup.  Ct.  592;  Baltic  Min. 
Co.  V.  Massachusetts,  231  U.  S. 
68,  58  L.  Ed.  127,  34  Sup.  Ct.  15; 
Meyer  v.  Wells,  Fargo  &  Co.,  223 
U.  S.  298,  56  L.  Ed.  445,  32  Sup. 
Ct.  218;  Pullman  Co.  v.  State  ex 
rel.  Coleman,  216  U.  S.  56,  54  L.  Ed. 
378,  30  Sup.  Ct.  232;  Western  U. 
Tel.  Co.  V.  State,  ex  rel.  Coleman, 
216  U.  S.  1,  54  L.  Ed.  355,  30  Sup. 
Ct.  190;   Galveston,  H.  &  S.  A.  R. 


Co.  V.  State,  210  U.  S.  217,  52  L. 
Ed.  1031,  28  Sup.  Ct.  638. 

See  also  General  Railway  Sig- 
nal Co.  V.  Commonwealth,  246  U. 

S. ,    62   L.   Ed.   ,   38    Sup. 

Ct.  360;  Dalton  Adding  Machine 
Co.   V.    Commonwealth,    246    U.    S. 

,   62   L.   Ed.  ,  38   Sup.   Ct. 

361;      Ireland    v.    Woods,    246    U. 

S.  ,  62  L.  Ed. ,  38  Sup.  Ct. 

319;  Locomobile  Co.  v.  Massachu- 
setts,   245    U.    S.    ,    62    L.    Ed. 

,  38  Sup.  Ct.  298;  Interna- 
tional Paper  Co.  v.  Common- 
wealth, 245   U.   S. ,  62  L.   Ed. 

,  38  Sup.  Ct.  292;    Looney  v. 

Crane    Co.,    245    U.    S.    178,    62    L. 

Ed.  ,  38  Sup.  Ct.  85;    Kansas 

City  S.  R.  Co.  v.  Stiles,  242  U.  S. 
Ill,  61  L.  Ed.  176,  37  Sup.  Ct.  58. 

43.  Browning  v.  City  of  Way- 
cross,  233  U.  S.  16,  58  L.  Ed.  828, 
34  Sup.  Ct.  578;  Barrett  v.  City  of 
New  York,  232  U.  S.  14,  58  L.  Ed. 
483,  34  Sup.  Ct.  203;  Crenshaw  v. 
State,  227  U.  S.  389,  57  L.  Ed.  565. 
33  Sup.  Ct.  294;  Buck  Stove  & 
Range  Co.  v.  Vickers,  226  U.  S.  205, 
57  L.  Ed.  189,  33  Sup.  Ct.  41; 
Leloup  V.  Port  of  Mobile,  127  U. 
S.  640,  32  L.  Ed.  311,  8  Sup.  Ct. 
1380;  Robbins  v.  Shelby  County 
Taxing  Dist.,  120  U.  S.  489,  30  L. 
Ed.  694,  7  Sup.  Ct.  592. 


§  G]  Thi:  Commkkck  Clavse.  19 

This  principle  prohibitiu*^  tlip  states  from  inter- 
fering witli  tile  transportation  of  legitimate  articles  of 
merchandise  from  one  state  to  anotiier,  and  establishing 
the  freedom  of  interstate  commerce,  invalidates  a  state 
law  levying  a  tax  of  one  dollar  on  each  person  leaving 
a  state;'**  a  law  re(|uiring  owners  of  vessels  engaged 
in  foreign  commerce  to  pay  to  state  officials  a  certain 
Sinn  on  account  of  every  alien  passenger  brought  from 
a  foreign  country  into  the  state;*'  a  state  statute  im- 
posing a  license  upon  importers  for  the  privilege  of 
selling  imported  goods;"  a  tax  of  a  certain  sum  upon 
each  ton  of  freight  taken  up  within  a  state  and  carried 
out  of  it,  or  taken  up  outside  of  the  state  and  delivered 
within  it;*'  a  state  statute  imposing  a  tax  on  bills  of 
lading  for  gold  or  silver  transported  to  any  jjoint  with- 
out the  state;"  a  license  tax  exacted  by  a  state  from 
dealers  in  goods  shipped  from  other  states,  as  a  condi- 
tion upon  their  sale;  *"  a  state  law  prohibiting  certain 
kinds  of  cattle  from  being  conveyed  into  a  state  be- 
tween March  1  and  November  1  of  each  year;''"  a  law 
taxing  "drummers"  offering  for  sale  or  selling  goods 
from  another  state  by  sample;''^  a  state  tax  upon  the 
gross  receipts  of  companies  engaged  in  interstate  com- 
merce ;^^  a  tax  imposed  upon  the  capital  stock  of  ferry 
companies  engaged  in  interstate  commerce  ;^'^  a  city 
ordinance  requiring  a  license  of  telegraph  comi)anies 
engaged  in  interstate  commerce;^*  a  state  law  i^lacing 
a  tax  of  one  cent  on  every  telegraphic  message  sent  out 

44.  Crandall    v.    State,    6    Wall.  50.    Hannibal  &  St.  J.  R.  Co.  v. 
(U.  S.)  35,  18  L.  Ed.  745.  Husen,  95  U.  S.  465,  24  L.  Ed.  527. 

45.  Passenger  Cases,  7  How.  (U.  51.     Robblns   v.   Shelby   County 
S.)  283,  12  L.  Ed.  702.  Taxing  Dist.,  120  U.  S.  489,  30  L. 

46.  Brown      v.      Maryland,      12  ^d.  694,  7  Sup.  Ct.  592. 

Wheat    (U.  S  )  419,  6  L.  Ed.  678.  ^2.    Philadelphia  &   Southern  S. 

S.   Co.   V.  Pennsylvania,   122   U.  S. 

47.  Philadelphia  &  R.  R.  Co.  v.       ^^^^  3,^  ^  ^^  ^  ^^   ^^^^ 

Com.,    15    Wall.    (U.    S.)     232,    21  53     Gloucester      Ferry     Co.      v. 

^    ^^-  1"*^-  State.  114  U.  S.  196,  29  L.  Ed.  158, 

48.  Almy  v.  California,  24  How.       5  g^p   q^   325. 

(U.  S.)  169,  16  L.  Ed.  644.  54.   Leloup  v.  Port  of  Mobile,  127 

49.  Welton  v.  State,  91  U.  S.  275,       U.  S.  640,  32  L.  Ed.  311,  8  Sup.  Ct. 
23  L.  Ed.  347.  1380. 


20  Control  Over   Common  Carriers  [<s^  6 

of  the  state  ;^^  a  statute  giving-  one  telegraph  company 
the  exclusive  right  to  transmit  intelligence  by  telegraph 
over  a  certain  portion  of  the  territory  of  a  state  ;^*'  an 
ordinance  requiring  an  express  company  to  obtain  a 
license  as  a  condition  precedent  to  engaging  in  the 
express  business;"  a  municipal  ordinance  making  it 
unlawful  for  an  interstate  street  railroad  company  to 
permit  more  than  one-third  greater  in  number  of  the 
passengers  to  ride  in  its  cars  over  and  above  a  number 
for  which  seats  were  provided  ;^^  a  law  forbidding  a 
person  from  bringing  into  the  state  cigarettes  or  ciga- 
rette paper  i""^  a  statute  levying  a  charter  fee  of  one- 
tenth  of  one  per  cent,  of  the  authorized  capital  stock 
of  companies  engaged  in  interstate  commerce/'" 

§  7.     Commencement  and   Termination  of   Protec- 
tion of  the  Commerce  Clause— Original  Package  Rule. 

The  protection  of  the  commerce  clause  against  state 
legislation  interfering  with  commodities  moving  in 
interstate  and  foreign  commerce  extends  from  the  time 
the  transportation  begins  and  continues  until  it 
terminates.*'^     Whenever    an   article    of   commerce    has 

55.  Western  U.  Tel.  Co.  v.  Texas,  U.  S.  539,  61  L.  Ed.  480,  37  Sup.  Ct. 
105  U.  S.  460,  26  L.  Ed.  1067.  217,  L.  R.  A.  1917  F  514,  Ann.  Cas, 

56.  Pensacola  Tel.  Co.  v.  Wes-  1917  C  643;  Clark  Distilling  Co.  v. 
tern  U.  Tel.  Co.  96  U.  S.  1,  24  L.  Western  Maryland  R.  Co.,  242  U. 
Ed.  708.  S.  311,  61  L.  Ed.  326,  37  Sup.  Ct. 

57.  Barrett  v.  City  of  New  180,  R.  L.  A.  1917  B  1218,  Ann.  Cas. 
York,  232  U.  S.  14,  58  L.  Ed.  483,  34  1917  B  845;  Rosenberger  v.  Pacific 
Sup.  Ct.  203.  Exp.  Co.,  241  U.  S.  48,  60  L.  Ed.  880, 

58.  South  Covington  &  C.  St.  R.  36  Sup.  Ct.  510;  Price  v.  People, 
Co.  V.  City  of  Covington,  235  U.  S.  238  U.  S.  446,  59  L.  Ed.  1400,  35 
537,  59  L.  Ed.  350,  35  Sup.  Ct.  158,  Sup.  Ct.  892;  Rossi  v.  Com.,  238 
L.  R.  A.  1915  F  792.  U.   S.   62,  59  L.  Ed.  1201,  35   Sup. 

59.  Austin  v.  State,  179  U.  3.  Ct.  677;  Browning  v.  City  of  Way- 
343,  45  L.  Ed.  224,  21  Sup.  Ct.  132.  cross,  233  U.  S.  16,  58  L.  Ed.  828, 

60.  Pullman  Co.  v.  State,  ex  rel.  34  Sup.  Ct.  578;  McDermott  v. 
Coleman,  216  U.  S.  56,  54  L.  Ed.  State,  228  U.  S.  115,  57  L.  Ed.  754, 
378,  30  Sup.  Ct.  232;  Western  U.  33  Sup.  Ct.  431,  47  L.  R.  A.  (N.  S). 
Tel.  Co.  V.  State,  ex  rel.  Coleman,  984;  Ann.  Cas.  1915A  39;  Purity 
216  U.  S.  1,  54  L.  Ed.  355,  30  Sup.  Extract  &  Tonic  Co.  v.  Lynch,  226 
Ct.  190.  U.  S.  192,  57  L.  Ed.  184,  33  Sup. 

61.  Hall  v.  Geiger-Jones  Co.,  242  Ct.  184,  33  Sup.  Ct.  44;   Louisville 


§  71 


The  CoMMEiiCE  Clause. 


21 


begun  to  move  from  one  state  to  another,  commerce 
in  tliat  commodity  among  the  states  has  commenced. *- 
There  must  be  a  point  of  time  when  goods  cease  to  be 
governed  exclusively  by  the  state  law  and  begin  to  In^ 
governed  and  protected  l)y  tlie  national  law  of  commer- 
cial regulation,  and  the  time  of  transition  from  state 
to  federal  control  is  the  moment  when  they  commence 
their  final  movement  of  transportation  from  the  state 
of  their  origin  to  that  of  their  destination.'"  Com- 
modities moving  in  such  commerce  do  not  become  sub- 
ject to  the  control  of  the  states  until  after  the  termi- 
nation of  the  interstate  movement,  that  is,  after  the 
arrival  and  delivery  of  the  commodities  and  their  sale 
in  the  original  packages.''*  The  states  have,  therefore, 
no  power  to  stop  an  interstate  shipment  at   the   state 


&  N.  R.  Co.  V.  F.  W.  Cook  Brewing 
Co.,  223  U.  S.  70,  5G  L.  Ed.  355,  32 
Sup.  Ct.  189;  Dozier  v.  State,  218 
U.  S.  124,  54  L.  Ed.  965,  30  Sup.  Ct. 
649,  28  L.  R.  A.  (N.  S.)  264;  Adams 
Exp.  Co.  V.  Com.,  206  U.  S.  129, 
51  L.  Ed.  987,  27  Sup.  Ct.  606; 
Rearick  v.  Com.,  203  U.  S.  507,  51 
L.  Ed.  295,  27  Sup.  Ct.  159;  Cook  v. 
MarshaU  County,  196  U.  S.  261,  49 
L  Ed.  471,  25  Sup.  Ct.  233;  Ameri- 
can Exp.  Co.  V.  Iowa,  196  U.  S. 
133,  49  L.  Ed.  417,  25  Sup.  Ct. 
182;  Caldwell  v.  North  Carolina, 
187  U.  S.  622,  47  L.  Ed.  336,  23 
Sup.  Ct.  229;  Austin  v.  State,  179 
U.  S.  343,  45  L.  Ed.  224,  21  Sup. 
Ct.  132;  Schollenberger  v.  Com., 
171  U.  S.  1,  43  L.  Ed.  49,  18  Sup. 
Ct.  757;  Vance  v.  W.  A.  Vander- 
cook  Co.,  170  U.  S.  438,  42  L.  Ed. 
1100,  18  Sup.  Ct.  674;  Leisy  v. 
Hardin,  135  U.  S.  100,  34  L.  Ed.  128, 
10  Sup.  Ct.  681;  Cook  v.  Pennsyl- 
vania, 97  U.  S.  566,  24  L.  Ed.  1015; 
Brown  v.  Maryland,  12  Wheat.  (U. 
S.)  419,  6  L.  Ed.  678. 

62.  The  Daniel  Ball  v.  United 
States,  10  Wall.  (U.  S.)  557,  19  L. 
Ed.   999. 


63  Bay  v.  Merrill  &  Ring  Log- 
ging Co.,  243  U.  S.  40,  61  L.  Ed. 
580,  37  Sup.  Ct.  376;  McCluskey 
V.  Marysville  &  N.  R.  Co.,  243  U. 
S.  36,  61  L.  Ed.  578,  37  Sup.  Ct. 
374;  Coe  v.  Errol,  116  U.  S.  517, 
29  L.  Ed.  715,  6  Sup.  Ct.  475. 

64.  Kirmeyer  v.  State,  236  U. 
S.  568,  59  L.  Ed.  721,  35  Sup.  Ct. 
419,  Adams  Exp.  Co.  v.  Com.,  214 
U.  S.  218,  53  L.  Ed.  972,  29  Sup.  Ct. 
633;  Heymann  v.  Southern  R.  Co., 
203  U.  S.  270,  51  L.  Ed.  178,  27  Sup. 
Ct.  104,  7  Ann.  Cas.  1130;  Vance 
V.  W.  A.  Vandercook  Co..  170  U.  S. 
438,  42  L.  Ed.  1100,  18  Sup.  Ct.  674; 
Leisy  v.  Hardin,  135  U.  S.  100,  34 
L.  Ed.  128,  10  Sup.  Ct.  681;  Bow- 
man V.  Chicago  &  N.  W.  Ry.  Co., 
125  U.  S.  465,  31  L.  Ed.  700,  8  Sup. 
Ct.  689,  1062;  Welton  v.  State,  91 
U.  S.  275,  23  L.  Ed.  347. 

In  McDermott  v.  State,  228  U.  S. 
115.  57  L.  Ed.  754,  33  Sup.  Ct.  431. 
47  L.  R.  A.  (N.  S.)  984,  Ann.  Cas. 
1915  A  39,  the  court  said:  "The 
term  'original  package'  had  its 
origin  in  Brown  v.  Maryland,  12 
Wheat.  (U.  S.)  419,  6  L.  Ed.  678, 
in  which  this  court  had  to  consider 


Control  Over  Common  Carriers 


[^  7 


line,^'  and  a  statute  wliicli  denies  the  right  to  send  a 
recognized  article  of  commerce  from  one  state  to  an- 
other, or  substantially  interferes  with  or  hampers  the 
same,  is  in  conflict  with  the  commerce  clause.'^ 

The  right  of  transportation  of  an  article  of  com- 
merce from  one  state  to  another  includes,  by  necessary 
implication,  the  right  of  the  consignee  to  sell  it  in  un- 
broken packages  at  the  place  where  the  transportation 
terminates."  The  extent  of  the  federal  control  over 
interstate  commerce  is  well  illustrated  in  Caldwell  v. 
North  Carolina,''^  wherein  the  court  held  that  the 
agent  of  a  foreign  corporation,  who,  after  receiving 
packages  of  frames  and  pictures  from  a  carrier,  fitted 
them  together  in  a  room  in  a  hotel  and  then  delivered 
them  to  those  who  had  ordered  them  from  the  corpora- 
tion, in  another  state,  was  engaged  in  interstate  com- 
merce and  not  subject  to  a  tax  upon  the  business  of 
selling  pictures,  frames  and  photographs. 


the  extent  of  the  protection  given 
under    Federal   authority   to   arti- 
cles   imported    into    this    country 
from  abroad  for  sale,  and  it  was 
there  held  tha'  (p.  441) ;  'When  the 
importer   has   so   acted   upon   the 
thing  imported,  that  it  has  become 
incorporated   and   mixed   up   with 
the  mass  of  property  in  the  coun- 
try,   it  has,  perhaps,  lost  its  distinc- 
tive character  as  an  import,  and 
has  become  subject  to  the  taxing 
power  of  the  State;  but  while  re- 
maining the  property  of  the  im- 
porter,  in   his  warehouse,   in   the 
orignal  form  or  package  in  which 
it  was  imported,  a  tax  upon  it  is 
too  plainly  a  duty  on  imports  to 
escape  the  prohibition  in  the  Con- 
stitution.'   That  doctrine  has  been 
many    times   applied   in    the   deci- 
sions of  this  court  in  defining  the 
line   of   demarcation    which    shall 
separate    the    Federal    from    the 
state   authority   where   the   sover- 
eign power  of  the  Nation  or  State 
is  involved  in  dealing  with  prop- 


erty. And  where  it  has  been  found 
necessary  to  decide  the  boundary 
of  Federal  authority  it  has  been 
generally  held  that,  where  goods 
prepared  and  packed  for  shipment 
in  interstate  commerce  are  trans- 
ported in  such  commerce  and  de- 
livered to  the  consignee  and  the 
package  by  him  separated  into  its 
component  parts,  the  power  of 
Federal  regulation  has  ceased  and 
that  of  the  State  may  be  asserted." 

65.  Rhodes  v.  State,  170  U.  S. 
412,  42  L.  Ed.  1088,  18  Sup.  Ct. 
664. 

66.  Kirmeyer  v.  State,  236  U.  S. 
568,  59  L.  Ed.  721,  35  Sup.  Ct.  419. 

67.  Louisville  &  N.  R.  Co.  v. 
F.  W.  Cook  Brewing  Co.,  223  U.  S. 
70,  56  L.  Ed.  355,  32  Sup.  Ct.  189; 
In  re  Rahrer,  140  U.  S.  545,  35 
L.  Ed.  572,  11  Sup.  Ct.  865;  Leisy  v. 
Hardin,  135  U.  S.  100,  34  L.  Ed. 
128,  10  Sup.  Ct.  681. 

68.  Caldwell  v.  North  Carolina, 
187  U.  S.  622,  47  L.  Ed.  336,  23  Sup. 
Ct.  229. 


§  7] 


Thk  CoMMF.KrK  ('i.Arsi-:. 


23 


But  tlie  scope  of  the  interstate  fommerce  clause 
is  not  sucli  as  to  embraco  acts  and  transactions  which 
are  local  in  tlieir  nature.  For  example,  while  the 
transportation  of  li.i^litning  rods  from  one  state  to  an- 
other constitutes  interstate  commerce,  tlie  ])usiness  of 
erecting-  lightning  rods  after  tlie  trans])ortation  is 
completed,  is  within  the  regulating  power  of  the  state 
and  not  the  subject  of  interstate  commerce,  because  the 
affixing  of  lightning  rods  to  houses  constitutes  a  busi- 
ness of  a  strictly  local  character  peculiarly  within  the 
exclusive  control  of  state  authority  and  is  wholly 
separate  from  interstate  commerce.'"'' 

Tlie  "original  package"  doctrine  which  defines 
the  line  of  demarcation  between  federal  and  state  au- 


69.  Browning  v.  City  of  Way- 
cross,  233  U.  S.  16,  58  L.  Ed.  828,  34 
Sup.  Ct.  578,  in  which  the  court 
said:  "It  is  true,  that  it  was  shown 
that  the  contract  under  which  the 
rods  were  shipped  bound  the  sel- 
ler, at  his  own  expense,  to  attach 
the  rods  to  the  houses  of  the 
persons  who  ordered  rods,  but  it 
was  not  within  the  power  of  the 
parties  by  the  form  of  their  con- 
tract to  convert  what  was  exclu- 
sively a  local  business,  subject  to 
state  control,  into  an  interstate 
commerce  business  protected  by 
the  commerce  clause.  It  is  mani- 
fest that  if  the  right  here  asserted 
were  recognized  or  the  power  to 
accomplish  by  contract  what  is 
here  claimed,  were  to  be  upheld, 
all  lines  of  demarkation  between 
National  and  state  authority  would 
become  obliterated,  since  it  would 
necessarily  follow  that  every  kind 
or  form  of  material  shipped  from 
one  State  to  the  other  and  in- 
tended to  be  used  after  delivery 
in  the  construction  of  buildings  or 
in  the  making  of  improvements  in 
any  form  would  or  could  be  made 
interstate    commerce.      Of    course 


we  are  not  called  upon  here  to 
consider  how  far  interstate  com- 
merce might  be  held  to  continue  to 
apply  to  an  article  shipped  from 
one  State  to  another,  after  de- 
livery and  up  to  and  including  the 
time  when  the  article  was  put  to- 
gether or  made  operative  in  the 
l)lace  of  destination  in  a  case 
where  because  of  some  intrinsic 
and  peculiar  quality  or  inherent 
complexity  of  the  article,  the  mak- 
ing of  such  agreement  was  es- 
sential to  the  accomplishment  of 
the  interstate  transaction.  In  say- 
ing this  we  are  not  unmindful  of 
the  fact  that  some  suggestion  is 
here  made  that  the  putting  up  of 
the  lightning  rods  after  delivery 
by  the  agent  of  the  seller  was  so 
vital  and  so  essential  as  to  render 
it  impossible  to  contract  without 
an  agreement  to  that  effect,  a 
suggestion  however  which  we 
deem  it  unnecessary  to  do  more 
than  mention  in  order  to  refute 
it."  See  also  General  Railway  Sig- 
nal Co.  V.  Commonwealth,  246  U. 

S. ,  G2  L.  Ed.  ,  38  Sup.  Ct. 

360. 


24  Control  Over  Common  Carriers  [§  7 

thority  means  that  where  goods  are  prepared  and  pack- 
ed for  shipment  in  interstate  commerce  and  are  trans- 
ported in  such  commerce,  the  protection  of  the  com- 
merce clause  attaches  thereto  and  continues  until  after 
the  arrival  and  delivery  of  the  commodities  and  their 
sale  by  the  consignee  in  the  original  packages  in  which 
the  goods  were  shipped.'"  The  term  ''original  pack- 
age" had  its  origin  in  Brown  v.  Maryland/'  in  which 
the  court  had  to  consider  the  extent  of  the  protection 
given  under  federal  authority  to  articles  imported  in- 
to the  country  from  abroad  for  sale,  and  it  was  there 
held  that  "when  the  importer  has  so  acted  upon  the 
thing  imported,  that  it  has  become  incorporated  and 
mixed  up  with  a  mass  of  property  in  the  country,  it 
has,  perhaps,  lost  its  distinctive  character  as  an  im- 
port, and  has  become  subject  to  the  taxing  power  of 
the  state;  but  while  remaining  the  property  of  the  im- 
porter, in  his  warehouse  in  the  original  form  or  pack- 
age in  which  it  was  imported,  a  tax  upon  it  is  too 
plainly  a  duty  on  imports  to  escape  the  prohibition  in 
the  Constitution." 

Subsequently,  in  Leisy  v.  Hardin,"  it  was  held 
that  the  right  to  sell  merchandise  imported  from  an- 
other state  in  the  original  package,  free  from  inter- 
ference of  state  laws,  was  protected  by  the  Constitution 
of  the  United  States,  as  up  to  such  sale,  goods  brought 
into  the  state  were  not  commingled  with  the  mass  of 
property  in  the  state.  If,  however,  small  packages 
are  associated  together  in  their  shipment  into  a  state, 
and  are  subsequently  sold  separately  or  in  various  lots, 
these  separate  packages,  although  respectively  in  the 
original   envelopes,  would   not  be   within   the   rule   in- 

70.    Rosenberger  v.  Pacific  Exp.  261,  49  L.  Ed.  471,  2.5  Sup.  Ct.  233; 

Co.,  241  U.  S.  48,  60  L.  Ed.  880,  36  Austin  v.  State,  179  U.  S.  343,  45 

Sup.  Ct.  510;   Savage  v.  Jones,  225  l.  Ed.  224,  21  Sup.  Ct.  132. 
U.  S.  501,  C6  L.  Ed.  1182,  32  Sup.  ^^     ^^    Wheat.     (U.    S.)    419,    6 

Ct.  715;   Heymann  v.  Southern  R.  ^     ^^    ^^^ 
Co     203  U.  S.  270,   51   L.   Ed.   178, 

27  sup    Ct.  104,  7  Ann.  Cas.  1130;  ^2.    135  U.  S.  100,  34  L.  Ed.  128, 

Cook  V.  Marshall  County,  196  U.  8  10  Sup.  Ct.  C81. 


§  8] 


Thf,  (V)MMi:Kcr.  ( 'i.aisk. 


1^0 


voked,  so  as  to  escape  a  local  law  governing-  domestic 
transactions."  A  contract,  tlicrefoi-e,  containing  \)io- 
visions  for  the  sale  of  goods  other  tiian  in  the  original 
packages  imi)orted,  is  subject  to  a  state  statute  as 
it  applies  to  transactions  outside  of  the  protection  ac- 
corded by  the  federal  Constitution  to  interstate  com- 
merce.'* Where  merchandise  shi])i)ed  in  interstate 
commerce  is  delivered  to  the  consignee  and  the  pack- 
age is  by  him  separated  into  its  component  parts, 
the  power  of  federal  regulation  has  ceased  and  tliat 
of  the  state  may  be  asserted.'^ 

§  8.  States  may  Forbid  Introduction  or  Ex- 
portation of  all  Articles  not  Legitimate  Subjects  of 
Trade  and  Commerce.  A¥hilo  Congress  lias  the  exclu- 
sive right  to  regulate  interstate  and  foreign  commerce, 
a  state,  in  the  exercise  of  its  police  power,  may  provide 
local  measures  in  the  interest  of  the  safety  and  wel- 
fare of  its  people,  although  such  regulations  incidentally 
or  indirectly  may  involve  or  affect  interstate  and  for- 
eign   commerce."'^      The    limitations    upon    the    police 


73.  Price  v.  People,  238  U.  S 
446,  59  L.  Ed.  1400,  35  Sup.  Ct.  892; 
Purity  Extract  &  Tonic  Co.  v. 
Lynch,  226  U.  S.  192,  57  L.  Ed.  184, 
33  Sup.  Ct.  44;  Austin  v.  State, 
179  U.  S.  343,  45  L.  Ed.  224,  21 
Sup.  Ct.  132. 

74.  Purity  Extract  &  Tonic  Co. 
V.  Lynch,  226  U.  S.  192,  57  L.  Ed. 
184,  33  Sup.  Ct.  44. 

75.  Cook  V.  Marshall  County, 
196  U.  S.  261,  49  L.  Ed.  471,  25 
Sup.  Ct.  233;  May  v.  City  of  New 
Orleans,  178  U.  S.  496,  44  L.  Ed. 
1165,  20  Sup.  Ct.  976. 

76.  SUgh  V.  Kirkwood,  237  U.  S. 
52,  59  L.  Ed.  835,  35  Sup.  Ct.  501; 
Eubank  v.  City  of  Richmond,  226 
U.  S.  137.  .57  L.  Ed.  I.IG.  33  Sup.  Ct. 
76,  42  L.  R.  A.  (N.  S.)  1123,  Ann. 
Cas.  1914  B  192:  Missouri  Pac.  R. 
Co.  V.  State  ex  rel.  Taylor,  216  U. 


S.  262,  54  L.  Ed.  472,  30  Sup.  Ct. 
330;  Missouri  P.  R.  Co.  v.  Larabee 
Flour  Mills  Co.,  211  U.  S.  612,  53 
L.  Ed.  352,  29  Sup.  Ct.  214;  Asbell 
V.  State,  209  U.  S.  251,  52  L.  Ed. 
778,  28  Sup.  Ct.  485,  14  Ann.  Cas. 
1101;  Chicago,  B.  &  Q.  R.  Co.  v. 
People  ex  rel.  Drainage  Com'rs., 
200  U.  S.  561,  50  L.  Ed.  596,  26 
Sup.  Ct.  341;  4  Ann.  Cas.  1175, 
Northern  Securities  Co.  v.  United 
States,  193  U.  S.  197,  48  L.  Ed.  679. 
24  Sup.  Ct.  436;  Reid  v.  Colorado, 
187  U.  S.  137,  47  L.  Ed.  108.  23 
Sup.  Ct.  92;  Smith  v.  St.  Louis  & 
S.  W.  Ry.  Co.,  181  U.  S.  248,  45 
L.  Ed.  847,  21  Sup.  Ct.  603;  Ras- 
mussen  v.  State.  181  U.  S.  198,  45 
L.  Ed.  820,  21  Sup.  Ct.  594;  Austin 
V.  State.  179  U.  S.  343,  45  L.  Ed. 
224,  21  Sup.  Ct.  132;  Louisiana  v. 
State,  176  U.  S.   1.  44   L.  Ed.  347, 


26 


Control  Ovkr   Common  Carriers 


[§  8 


powers  of  a  state  are  hard  to  define  under  the  numerous 
decisions  of  the  federal  Supreme  Court;  but  state  au- 
thority embraces  every  law  or  statute  which  concerns 
the  whole  or  any  part  of  the  people,  whether  it  relates 
to  their  rights  or  duties  in  their  public  or  private  rela- 
tion/' 

The  authority  of  the  state  to  prescribe  regulations 
which  prevent  the  production  within  its  borders  of 
impure  foods,  unfit  for  use,  and  such  articles  as  would 
spread  disease  and  pestilence,  is  well  established;  for  such 
articles  are  not  legitimate  subjects  of  trade  or  com- 
merce, and  they  are  not,  therefore,  within  the  protec- 


2o  Sup.  Ct.  251;  Lake  Shore  &  M. 
S.  Ry.  Co.  V.  State,  173  U.  S.  285, 
43  L.  Ed.  702,  19  Sup.  Ct.  465; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Haber, 
169  U.  S.  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488;  Bowman  v.  Chicago 
&  N.  W.  Ry.  Co.,  125  U.  S.  465,  31 
L.  Ed.  700,  8  Sup.  Ct.  689,  1062; 
Morgan's  L.  &  T.  R.  &  S.  S.  Co. 
V.  Louisiana  Board  of  Health,  118 
U.  S.  455,  30  L.  Ed.  237,  6  Sup.  Ct. 
1114;  Sherlock  v.  Ailing,  93  U.  S. 
99,  23  L.  Ed.  819. 

"It  may  also  be  admitted  that 
the  police  powers  of  a  State  justi- 
fies the  adoption  of  the  precaution- 
ary measures  against  social  evils. 
Under  it  a  State  may  legislate  to 
prevent  the  spread  of  crime,  or 
pauperism,  or  disturbance  of  the 
peace.  It  may  exclude  from  its 
limits  convicts,  paupers,  idiots,  and 
lunatics,  and  persons  likely  to  be- 
come a  public  charge,  as  well  as 
persons  afflicted  by  contagious  or 
infectious  diseases;  a  right  found- 
ed, as  intimated  in  The  Passage 
Cases,  7  How.  283,  by  Mr.  Justice 
Greer,  in  the  sacred  law  of  self- 
defense.  Vide  3  Sawyer  283.  The 
same  principle,  it  may  also  be  con- 
ceded, would  justify  the  exclusion 
of  property  dangerous  to  the  prop- 


erty of  citizens  of  the  State;  for 
example,  animals  having  contagi- 
ous or  infectious  diseases.  All 
these  exertions  of  power  are  in  im- 
mediate connection  with  the  pro- 
tection of  persons  and  property 
against  noxious  acts  of  other  per- 
sons, or  such  a  use  of  property  as 
is  injurious  to  the  property  of 
others.  They  are  self-defensive. 
But  whatever  may  be  the  nature 
and  reach  of  the  police  power  of  a 
State,  it  cannot  be  exercised  over 
a  subject  confided  exclusively  to 
Congress  by  the  Federal  Consti- 
tution." Hannibal  &  St.  J.  R.  Co. 
V.  Husen,  95  U.  S.  465,  24  L.  Ed. 
527. 

"But  when  the  local  police  regu- 
lation has  real  relation  to  the 
suitable  protection  of  the  people 
of  the  State,  and  is  reasonable  in 
its  requirements,  it  is  not  invalid 
because  it  may  incidentally  af- 
fect interstate  commerce,  provid- 
ed it  does  not  conflict  with  legis- 
lation enacted  by  Congress  pur- 
suant to  its  constitutional  author- 
ity." Savage  v.  Jones,  225  U.  S. 
501,  56  L.  Ed.  1182,  32  Sup.  Ct. 
715. 

77.  New  York  v.  Miln,  11  Pet. 
(U.   S.)    102,  9  L.  Ed.   648. 


§  8]  TiiH  Commerce  Clause.  27 

tion  of  the  commorce  clause  of  the  federal  constitution. 
They  may  be  outlawed,  and  the  self-protecting  power 
of  the  state  may  rightfully  be  exerted  against  their 
introduction.'*  For  example,  a  state  law  forbidding 
a  delivery  for  shipment  in  both  intrastate  and  inter- 
state commerce,  of  any  citrus  fruits  which  were  im- 
mature or  otherwise  unfit  for  consumption,  was  held 
to  be  a  valid  exercise  of  the  police  power  of  tiie  state." 
A  statutory  enactment  of  a  state  forbidding  any- 
one from  having  in  his  possession  game  birds,  killed 
within  the  state,  with  the  intention  of  ])rocuiing  trans- 
portation of  the  same  without  the  limits  of  the  state, 
was  held  to  be  valid  although  interstate  commerce 
was  indirectly  affected  thereby.*"  Applying  the  same 
rule,  it  has  been  held  that  a  state  may  prohibit  the 
sale  of  imported  game  during  the  closed  season  there- 
in, the  law  being  sustained  upon  the  ground  that, 
while  foreign  commerce  was  incidentally  involved,  the 
state  could  prohibit  the  sale  of  such  game  in  order  to 

78.    Savage  v.   Jones,   225   U.   S.  Does    the    freedom    of    commerce 

501,  56  L.  Ed.  1182,  32  Sup.  Ct.  715;  among  the  States  demand  a  recog- 

Louisiana  v.  State,  176  U.  S.  1,  44  nition  of  the  right   to   practice   a 

L.  Ed.  347,  20  Sup.  Ct.  251;    Geer  deception  upon  the  public  in  the 

V.  State,  161  U.  S.  519,  40  L.  Ed.  sale  of  any  articles,  even  those  that 

793,  IG  Sup.  Ct.  600;    Bowman  v.  may   have  become  the   subject   of 

Chicago  &  N.  W.  Ry.  Co.,  125  U.  S.  trade  in  different  parts  of  the  coun- 

465,  31  L.  Ed.  700,  8  Sup.  Ct.  689,  try?      *      *      *      Such    legislation 

1062.  niay,    indeed,    indirectly    or    inci- 

"The  statute  seeks  to  suppress  dentally  affect  trade  in  such  pro- 
false  pretences  and  to  promote  fair  ducts  transported  from  one  State 
dealing  in  the  sale  of  an  article  of  to  another  State.  But  that  cir- 
food.  It  compels  the  sale  of  oleo-  cumstance  does  not  show  that  laws 
margarine  for  what  it  really  is,  of  the  character  alluded  to  are  in- 
by  preventing  its  sale  for  what  it  consistent  with  the  power  of  Con- 
is  not.  Can  it  be  that  the  Consti-  gress  to  regulate  commerce  among 
tution  of  the  United  States  secures  the  States."  Plumley  v.  Com.,  155 
to  any  one  the  privilege  of  manu-  U.  S.  461,  39  L.  Ed.  223,  15  Sup. 
facturing  and  selling  an  article  of  Ct.  154. 

food  in  such  manner  as  to  induce  79.    Sligh    v.    Kirkwood,    237    U. 

the  mass  of  people  to  believe  that  S.  52,  59  L.   Ed.  835,  35  Sup.  Ct. 

they  are  buying  something  which,  501. 

in   fact,   is  wholly   different   from  80.    Geer  v.  State,  161  U.  S.  519. 

that    which    is    offered    for    sale?  40  L.  Ed.  793.  16  Sup.  Ct.  600. 


28  Control  Over   Common  Carriers  [§  8 

protect  local  game  during  the  closed  season. ^^  A  stat- 
ute of  a  state  passed  to  prevent  deception  in  the  manu- 
facture of  imitation  butter  was  valid  although  the 
article  for  the  sale  of  which  the  defendant  was  con- 
victed in  the  state  court,  had  been  received  by  him 
from  the  manufacturers  in  another  state  as  their 
agent,  and  had  been  sold  by  him  in  the  original  pack- 
age.^^ 

In  the  exercise  of  its  police  power,  a  state  may  re- 
quire a  person  transporting  food-stutTs  from  another 
state  to  disclose  the  ingredients  contained  therein.^^ 
A  law  of  a  state  designed  to  prevent  the  introduction 
within  its  borders  of  diseased  animals  is  valid  in  the 
absence  of  federal  regulation  governing  the  same  sub- 
ject matter.^*  ''It  is  said  that  the  defendant  has  a 
right,"  said  the  court  in  the  Reid  case,  cited,  "under 
the  Constitution  of  the  United  States  to  ship  live  stock 
from  one  State  to  another  State.  This  will  be  con- 
ceded on  all  hands.  But  the  defendant  is  not  given 
by  that  instrument  the  right  to  introduce  into  a  state, 
against  its  will,  live  stock  affected  by  a  contagious, 
infectious  or  communicable  disease,  and  whose  presence 
in  the  State  will  or  may  be  injurious  to  its  domestic 
animals.  The  State — Congress  not  having  assumed 
charge  of  the  matter  as  involved  in  interstate  com- 
merce— may  protect  its  people  and  their  property 
against  such  dangers,  taking  care  always  that  the 
means  employed  to  that  end  do  not  go  beyond  the  neces- 
sities of  the  case  or  unreasonably  burden  the  exercise 
of  privileges  secured  by  the  Constitution  of  the  United 

81.  New  York  ex  rel.  Silz  v.  the  public,  to  require  tlie  disclosure 
Hesterberg,  211  U.  S.  31,  53  L.  Ed.  to  which  objection  is  made.  The 
75,  29  Sup.  Ct.  10.  provision  was  not  an  unreasonable 

82.  Plumley  v.  Com.,  155  U.  S.  ^ne  and  the  effect  upon  interstate 
461,  39  L.  Ed.  223,  15  Sup.  Ct.  154.  ,^^^^^^^  ^.^,  incidental  only." 

J'-JT'"^!"  Tt^T.^^'V,  84.    Asbell    V.    State,    209    U.    S. 

Wright,   225   U.    S.   540,   56   L.   Ed. 

1197,  32  Sup.  Ct.  784.  in  which  the  ^51,  52  L.  Ed.  778,  28  Sup.  Ct.  485. 

court  said:   "It  was  competent  for  14  Ann.   Cas.   1101;    Reid  v.   Colo- 

the   State,   in   the   exercise   of  its  rado,  187  U.  S.  137,  47  L.  Ed.  108, 

power  to  prevent  Imposition  upon  23  Sup.  Ct.  92. 


§  S|  Thk  Commerce  Clause.  29 

States.  Is  the  statute  of  Colorado  liable  to  the  ohjeo- 
tion  just  stated  I  Can  the  courts  hold  that  upon  its 
face  it  unreasonably  obstructs  the  exercise  of  the 
general  right  secured  by  the  Constitution  to  ship  or 
send  recognized  articles  of  commerce  from  one  State 
to  another  without  interference  by  local  authority? 
Those  questions  must  be  answered  in  the  negative.  The 
Colorado  statute,  in  effect,  declares  that  live  stock 
coming,  between  the  dates  and  from  the  territory  speci- 
fied, are,  ordinarily,  in  such  condition  that  their  pres- 
ence in  the  State  may  be  dangerous  to  its  domestic 
animals;  and  hence  the  requirement  that  before  being 
brought  or  sent  into  the  State  they  shall  either  be 
kept  at  some  place  north  of  the  36th  parallel  of  north 
latitude  for  at  least  ninety  days  prior  to  their  importa- 
tion into  the  State,  or  the  owner  must  procure  from 
the  State  Veterinary  Sanitary  Board  a  certificate  or 
bill  of  health  that  the  cattle  are  free  from  all  infec- 
tious or  contagious  diseases,  and  have  not  been  exposed 
to  any  of  said  diseases  at  any  time  within  ninety  days 
prior  thereto.  As  there  is  no  evidence  in  the  case  as 
to  the  practical  operation  of  this  regulation  upon  ship- 
pers of  cattle,  as  it  does  not  appear  otherwise  than 
that  the  statute  can  be  obeyed  without  serious  em- 
barrassment or  unreasonable  cost,  the  court  cannot  as- 
sume arbitrarily  that  the  State  acted  wholly  without 
authority  or  that  it  unduly  burdened  the  exercise  of 
the  privilege  of  engaging  in  interstate  commerce.  The 
accused  seems  to  have  been  content  to  rest  his  de- 
fence upon  such  grounds  as  arose  upon  the  face  of  the 
local  statute,  without  reference  to  any  evidence  bear- 
ing upon  the  reasonableness  or  unreasonableness  of  the 
particular  methods  adopted  by  the  State  to  protect  its 
domestic  animals.  He  seems  to  have  been  willing  to 
risk  the  case  upon  the  simple  proposition — based  upon 
the  words  of  the  State  enactment  and  upon  the  act  of 
Congress,  reinforced  by  certain  regulations  made  by  the 
Agricultural  Department — that  the  local  statute  was 
inconsistent  with  that  act,  and  with  the  general  power 
of  Congress  to  regulate  interstate  commerce.    As,  there- 


30  Control  Over  Common  Carriers  [§  8 

fore,  the  statute  does  not  forbid  the  introduction  into 
the  State  of  all  live  stock  coming  from  the  defined 
territory — that  diseased  as  well  as  that  not  diseased — 
but  only  prescribes  certain  methods  to  protect  the  do- 
mestic animals  of  Colorado  from  contact  with  live  stock 
coming  from  that  territory  between  certain  dates,  and 
as  those  methods  have  been  devised  by  the  State  un- 
der the  power  to  protect  the  property  of  its  people 
from  injury,  and  do  not  appear  upon  their  face  to  be 
unreasonable,  we  must,  in  the  absence  of  evidence  show- 
ing the  contrary,  assume  that  they  are  appropriate  to 
the  object  which  the  State  is  entitled  to  accomplish." 

§  9.  Statutory  Exceptions   Empowering  States  to 
Regulate  Interstate  Shipments  of  Intoxicating  Liquors. 

Prior  to  the  enactment  of  federal  statutes  commencing 
with  the  Wilson  Act  in  1890^^  a  state  was  without  power 
to  control,  regulate  or  legislate  against  the  introduc- 
tion of  intoxicating  liquors  within  its  borders  from  other 
states  until  after  the  arrival  and  delivery  of  such  com- 
modities and  their  sale  within  the  state  in  the  original 
packages;  for  'the  courts  uniformly  held  that  intoxicat- 
ing liquors  were  legitimate  articles  of  commerce  pro- 
tected from  hostile  legislation  of  the  states  under  the 
commerce  clause  until  delivery  to  the  consignee  and 
a  sale  by  him.^*^     In  those  states,  therefore,  where  the 

85.  Act  of  Aug.  8,  1890,  26  Stat.  Territory,  and  shaU  not  be  exempt 
at  L.  313,  which  is  as  follows:  therefrom  by  reason  of  being  in- 
"That  all  fermented,  distilled,  or  troduced  therein  in  original  pack- 
other  intoxicating  liquors  or  ages  or  otherwise." 
liquids  transported  into  any  State  86.  Leisy  v.  Hardin,  135  U.  S. 
or  Territory  or  remaining  there-  100,  34  L.  Ed.  128,  10  Sup.  Ct.  681. 
in  for  use,  consumption,  sale,  or  "To  concede  to  a  State  the  power 
storage  therein,  shall  upon  arrival  to  exclude,  directly  or  indirectly, 
in  such  State  or  Territory  be  sub-  articles  so  situated,"  said  Chief 
ject  to  the  operation  and  effect  of  Justice  Fuller,  "without  congress- 
the  laws  of  such  State  or  Terri-  ional  permission,  is  to  concede  to 
tory  enacted  in  the  exercise  of  a  majority  of  the  people  of  a  State, 
its  police  powers,  to  the  same  ex-  commercial  intercourse  between 
tent  and  in  the  same  manner  as  the  States,  by  determining  what 
though  such  liquids  or  liquors  had  shall  be  its  subjects,  when  that 
been   produced   in    such    State    or  power  was  distinctly  granted  to  be 


§    9]  ThK    COMMKHfE    ClAUSK.  31 

sale  of  intoxicating  liquors  was  proliibited,  the  obser- 
vance and  the  enforcement  of  such  prohibitory  laws 
were  largely  rendered  futile  because  of  the  protection 
alTorded  persons  selling  liquor  in  the  original  package 
after  delivery,  when  ship])ed  from  another  state. 

The  Wilson  Act  i)rovid(*d  that  all  intoxicating 
liquors  transported  into  any  state  or  territory  or 
remaining  there  for  use,  consumption,  sale,  or  storage, 
became,  upon  arrival  in  such  state  or  territory, 
subject  to  the  operation  and  the  effect  of  laws  of  such 
state  or  territory  enacted  in  the  exercise  of  its  police 
powers,  to  the  same  extent  and  in  the  same  manner 
as  though  such  liquors  had  been  produced  in  such 
state  or  territory  and  were  not  exempt  therefrom  and 
by  reason  of  being  introduced  therein  in  the  original 
l)ackages  or  otherwise.  The  purpose  of  the  AVilson  Act, 
as  a  regulation  by  Congress  of  interstate  commerce, 
was  to  allow  the  states  as  to  intoxicating  liquors,  when 
the  subject  of  such  commerce,  to  exercise  ampler  power 
than  could  have  been  exercised  before  the  enactment 
of  the  statute.  Congress  thereby  established  a  special 
rule  enabling  the  states  to  extend  their  authority  as  to 
such  liquor  shipped  from  other  states  before  it  became 
commingled  witli  the  mass  of  other  property  in  the 
state  by  a  sale  in  the  original  package.  The  words  in 
the  statute  "upon  arrival  in  such  state"  were  construed 
to  mean  that  the  state  power  could  not  attach  to  intoxi- 
cating liquors  shipped  in  interstate  commerce  before 
arrival  and  delivery  within  the  state  to  the  consignee, 

exercised  by  the  people  of  the  stance,  accommodation  to  it,  with- 
United  States,  represented  in  Con-  out  serious  inconvenience,  may 
gress,  and  its  possession  by  the  readily  be  found,  to  use  the  Ian- 
latter  was  considered  essential  to  guage  of  Mr.  .Justice  .Tohnson.  in 
that  more  perfect  Union  which  the  Gibbons  v.  Ogden,  0  WHieat.  1, 
Constitution  was  adopted  to  create.  238,  in  'a  frank  and  candid  co- 
Undoubtedly.  there  is  difficulty  in  operation  for  the  general  good.' 
drawing  the  line  between  the  mu-  The  legislation  in  question  Is  to 
nlcipal  powers  of  the  one  govern-  the  extent  indicated  repugnant  to 
ment  and  the  commercial  powers  the  third  clause  of  section  8  of 
of  the  other,  but  when  that  line  Art.  1  of  the  Constitution  of  the 
Is  determined,  in  the  particular  in-  United    States." 


32 


Control  Ovj:e   Common   Carriers 


[§  9 


but  that  the  state  control  could  be  exercised  before 
a  sale  in  the  original  package  after  delivery/'  Under 
the  Wilson  Act,  as  construed  by  the  courts,  shipments 
of  intoxicating  liquors  in  interstate  commerce  were  not 
prohibited,  but,  on  the  contrary,  were  under  the  pro- 
tection of  the  commerce  clause  until  terminated  by  a 
delivery  to  the  consignee. 

The  law  governing  interstate  shipments  of  intoxi- 
cating liquors  thus  lemained  until  the  enactment  of 
the  Webb-Kenyon  Act  of  March  1,  1913®^  which  pro- 
vides, in  effect  and  in  substance,  that  all  shipments  of 
intoxicating  liquors  from  foreign  countries,  territories 
or  other  states  into  a  state,  which  are  intended  to 
be  received,  possessed,  sold  or  in  any  manner  used 
either  in  the  original  package  or  otherwise,  in  viola- 
tion of  the  law  of  such  state,  shall  be  prohibited.  This 
statute  has  been  held  to  be  a  valid  exercise  of  the  power 
of  congress  over  interstate  shipments  of  liquor.*"     The 


87.  Rosenberger  v.  Pacific  Exp. 
Co.,  241  U.  S.  48,  60  L.  Ed.  880,  36 
Sup.  Ct.  516;  American  Express 
Co.  V.  Iowa,  196  U.  S.  133,  49  L. 
Ed.  417,  25  Sup.  Ct.  182;  Vance  v. 
W.  A.  Vandercook  Co.,  170  U.  S. 
438,  42  L.  Ed.  1100,  18  Sup.  Ct. 
G74;  Rhodes  v.  State,  170  U.  S.  412, 
42  L.  Ed.  1088,  18  Sup.  Ct.  664. 

88.  37  Stat,  at  L.  699.  The 
Webb-Kenyon   Act   is   as   follows: 

"The  shipment  or  transporta- 
tion, in  any  manner  or  by  any 
means  whatsoever,  of  any  spiritu- 
ous, vinous,  malted,  fermented,  or 
other  intoxicating  liquor  of  any 
kind,  from  one  State,  Territory,  or 
District  of  the  United  States,  or 
place  noncontiguous  to  but  sub- 
ject to  the  jurisdiction  thereof,  into 
any  other  State,  Territory,  or  Dis- 
trict of  the  United  States,  or  placa 
noncontiguous  to  but  subject  to 
the  jurisdiction  thereof,  or  from 
any  foreign  country  into  any  State, 
Territory,  or  District  of  the  United 


States,  or  place  noncontiguous  to 
but  subject  to  the  jurisdiction 
thereof,  which  said  spirituous, 
vinous,  malted,  fermented,  or  other 
intoxicating  liquor  is  Intended, 
by  any  person  interested  therein, 
to  be  received,  possessed,  sold,  or 
in  any  manner  used,  either  in  the 
original  package  or  otherwise,  in 
violation  of  any  law  of  such  State, 
Territory  or  District  of  the  United 
States,  or  place  noncontiguous  to 
but  subject  to  the  jurisdiction 
thereof,  is  hereby  prohibited." 

89.  United  States.  Seaboard  Air 
Line   Ry.   Co.   v.   State,   245   U.   S. 

298,   62    L.    Ed.  ,   38   Sup.   Ct. 

96;  Clark  Distilling  Co.  v.  Wes- 
tern Maryland  R.  Co.,  242  U.  S. 
311,  61  L.  Ed.  326,  37  Sup.  Ct.  180, 
L.  R.  A.  1917  B  1218,  Ann.  Cas. 
1917  B  845. 

Iowa.  State  v.  United  States 
Exp.  Co.,  164  Iowa  112,  145  N.  W. 
451. 


§  9] 


TjiK  Commerce  Clause 


33 


Wcbb-Keiiyon  Act  was  enacted  for  the  purpose  of  ex- 
teiidiug  that  wliicli  was  partly  done  by  the  Wilson  Act, 
that  is,  its  purpose  was  to  i)rohibit  the  immunity  char- 
acteristic of  interstate  commerce  from  being  used  to 
permit  the  receipt  of  liquor  througli  such  commerce 
within  the  states  contrary  to  their  laws.  Its  effect  was 
to  withdraw  the  protection  of  the  commerce  clause  of 
the  federal  constitution  from  interstate  and  foreign 
shipments  of  intoxicating  liquors  and  to  place  them 
absolutely  within  the  police  powers  of  the  state  after 
they  crossed  the  state  line.°°  Under  this  statute  if  ship- 
ments of  intoxicating  liquors  are  intended  to  be  used, 
possessed  or  sold  in  violation  of  a  state  law,  their 
transportation  may  be  prohibited  by  the  state;  but,  on 
the  other  hand,  if  the  liquor  is  not  to  be  used,  sold 
or  received  in  violation  of  the  law^  of  the  state,  it  re- 
mains under  the  protection  of  the  commerce  clause 
and  its  transportation  may  not  be  prohibited  by  the 
state.'' 


Kansas.  State  v.  Doe,  92  Kan. 
212,  139  Pac.  1169. 

Kentucky.  Adams  Exp.  Co.  v. 
Com.,  160  Ky.  66,  169  S.  W.  603. 

North  Carolina.  State  v.  Sea- 
board Air  Line  R.  Co.,  169  N.  C. 
295,  84  S.  E.  283. 

South  Carolina.  Atkinson  v. 
Southern  Exp.  Co.,  94  S.  C.  444,  48 
L.  R.  A.   (N.  S.)   349,  78  S.  E.  516. 

Texas.  Ex  Parte  Peede.  7.5  Tex. 
Cr.  247,  170  S.  W.  749. 

Virginia.  Taylor  v.  Com.,  117 
Va.  909,  85  S.  E.  499. 

90.  United  States.  West  Virginia 
V.  Adams  Exp.  Co.,  135  C.  C.  A. 
464,  219  Fed.  794. 

Alabama.  Southern  Exp.  Co.  v. 
State,  188  Ala.  454,  66  So.  115. 

Arizona.  Sturgeon  v.  State,  17 
Ariz.  513,  L.  R.  A.  1917  B  1230,  154 
Pac.  1050. 

Delaware.  Van  Winkle  v.  State, 
4  Boyce  (Del.)  578,  Ann.  Cas.  1916 
D  104,  91  Atl.  385. 


Kansas.  Kansas  City  Breweries 
Co.  V.  Kansas  City,  96  Kan.  731,  153 
Pac.  523;  State  v.  Missouri  Pac.  R. 
Co.,  96  Kan.  609,  Ann.  Cas.  1917  A 
612,  152  Pac.  777. 

Kentucky.  Com.  v.  White,  166 
Ky.  528,  179  S.  W.  469;  Adams 
Exp.  Co.  V.  Crigler  &  Crigler  Co., 
161  Ky.  89,  170  S.  W.  542;  Adams 
Exp.  Co.  V.  Com.  154  Ky.  462,  48 
L.  R.  A.  (N.  S.)  342,  157  S.  W.  908. 

Mississippi.  American  Exp.  Co. 
V.  Beer,  107  Miss.  528,  Ann.  Cas. 
1916  D  127,  65  So.  575. 

Tennessee.  Palmer  v.  Southern 
Exp.  Co.,  129  Tenn.  116,  165  S.  W. 
236. 

Virginia.  Bristol  Distributing 
Co.  V.  Southern  Exp.  Co.,  117  Va. 
7,  83  S.  E.  1084. 

91.  Adams  Exp.  Co.  v.  Com., 
238  U.  S.  190,  59  L.  Ed.  1267,  35 
Sup.  Ct.  824,  Ann.  Cas.  1915  D  1167, 
Theo  Hamm  Brewing  Co.  v.  Chl- 


1   CVjntrol  CanieiH  3 


Control  Over  Common  Carriers 


[§  9 


Under  a  congressional  enactment  known  as  tlie 
Reed  amendment  to  the  Post  Office  Appropriation 
Bill,^^  it  is  provided,  inter  alia:  "Whoever  shall  order, 
purchase,  or  cause  intoxicating  liquors  to  be  trans- 
ported in  interstate  commerce,  except  for  scientific, 
sacramental,  medicinal  and  mechanical  purposes,  into 
any  state  or  territory  the  laws  of  which  state  or  terri- 
tory prohibit  the  manufacture  or  sale  therein  of  intoxi- 
cating liquors  for  beverage  purposes  shall  be  punished 
as  aforesaid;  provided  that  nothing  herein  shall  author- 
ize the  shipment  of  liquor  into  any  state  contrary  to 
the  laws  of  such  state."  Under  this  amendment  ship- 
ments of  intoxicating  liquor  from  one  state  to  another 
state  wherein  the  manufacture  or  sale  of  intoxicating 
liquors      is      punished,      is      absolutely      prohibited. 


cago,  R.  I.  &  P.  Ry.  Co.,  215  Fed. 
072. 

"It  would  be  difficult  to  frame 
language  more  plainly  indicating 
the  purpose  of  Congress  not  to  pro- 
hibit all  interstate  shipment  or 
transportation  of  liquor  into  so- 
called  dry  territory  and  to  render 
the  prohibition  of  the  statute  oper- 
ative only  where  the  liquor  is  to 
be  dealt  with  in  violation  of  the 
local  law  of  the  State  into  which 
it  is  thus  shipped  or  transported, 
Such  shipments  are  prohibited 
only  when  such  person  interested 
intends  that  they  shall  be  possess- 
ed, sold  or  used  in  violation  of  any 
law  of  the  State  wherein  they  are 
received.  Thus  far  and  no  farther 
has  Congress  seen  fit  to  extend  the 


prohibitions  of  the  act  in  relation 
to  interstate  shipments.  Except 
as  affected  by  the  Wilson  Act, 
which  permits  the  state  laws  to 
operate  upon  liquors  after  termin- 
ation of  the  transportation  to  the 
consignee,  and  the  Webb-Kenyon 
Act,  which  prohibits  the  transpor- 
tation of  liquors  into  the  State  to 
be  dealt  with  therein  in  violation 
of  local  law,  the  subject-matter  of 
such  interstate  shipment  is  left 
untouched  and  remains  within  the 
sole  jurisdiction  of  Congress  un- 
der the  Federal  Constitution." 
Adams  Express  Co.  v.  Kentucky, 
supra. 

92.    Act    of    March    3,    1917,    39 
Stat,  at  L.  162. 


CHAPTER    II 


Respective  Powers  of  the  States  and  National  Govern- 
ment Over  Common  Carriers 

Sec.  10.     Introductory. 

Sec.  11.  General  Principles  Determining  State  and  National  Control 
Over  Interstate  Carriers  and  Transportation. 

Sec.  12.  Foregoing  Doctrines  Illustrated  and  Applied  to  Divers  Phases 
of  Interstate  Carriage  and  Transportation. 

Sec.  13.  Federal  Laws  and  Regulations  Encroaching  upon  Powers  of 
the  State  over  Their  Internal  Affairs,  Invalid. 

Sec.  14.  Federal  Regulation  to  be  Valid  Must  Have  Real  or  Substan- 
tial Connection  with  Interstate  Commerce. 

Sec.  15.  AVhen  Congressional  Power  may  be  Validly  Exercised  over 
Intrastate  Subject  Matters. 

Sec.  16.  When  Congress  Legislates  upon  a  Subject  Matter  of  Com- 
merce, State  Laws  Covering  Same  Field  are  Thereby 
Superseded. 

Sec.  17.  Difficulty  of  Defining  Field  or  Subject  Matter  Covered  by 
Congressional  Legislation. 

Sec.  18.  Common  Law  Principles  as  Applied  in  State  Courts  Super- 
seded as  to  Subject-Matters  Covered  by  Federal  Statutes. 

Sec.  10.  Power  of  States  to  Regulate  Interstate  Rates  of  Carriers 
Formerly  Upheld  by  Supreme  Court — The  Granger  Cases. 

Sec.  20.  State  Control  Over  and  Power  to  Regulate  Rates  and  Charges 
on  Interstate  Shipments  Denied. 

Sec.  21.  Passenger  Fares  for  Interstate  Journeys  Prescribed  by  Mu- 
nicipal Ordinances  and  Accepted  by  Carriers  Invalid. 

Sec.  22.  Power  of  States  over  Intrastate  Commerce  as  Broad  and  Ex- 
clusive as  Control  of  Congress  over  Interstate  Commerce. 

Sec.  23.  States  ]\Iay  Regulate  and  Fix  Reasonable  Rates  for  Intra- 
state Transportation. 

Sec.  24.  Statutes  of  States  Regulating  Delivery  of  Cars  for  Interstate 
Shipment  Inoperative. 

Sec.  25.  States  may  Compel  Switch  Connections  with  Private  Side 
Tracks  for  Intrastate  Business. 

Sec.  26.  State  Statutes  Prescribing  Rates  Specified  in  Bill  of  Lad- 
ing Void  as  to  Interstate  but  Valid  as  to  Intrastate  Ship- 
ments. 

Sec.  27.  State  Laws  and  Decisions  Governing  Liability  for  Loss  and 
Damage  to  Property  Superseded  by  Carmack  Amendment. 

Sec.  28.  State  Statute  Authorizing  Issuance  of  Transportation  In 
Payment  for  Advertising  Invalid. 

35 


36  Control  Over  Common  Carriers  [^  10 

Sec.  29.  States  May  Require  Operation  of  Trains  Between  Intrastate 
Points  on  Interstate  Lines — Limitations  and  Exceptions, 

Sec.  30.  State  and  Municipal  Regulations  Prescribing  Speed,  Signals 
and  Stoppage  of  Interstate  Trains. 

Sec.  31.  Georgia  "Blow-Post"  Law  Invalid,  Being  a  Direct  Burden  up- 
on Interstate  Commerce. 

Sec.  32.  States  May  Compel  Carriers  to  Make  and  Maintain  Track 
Connections  for  Interchange  of  Traffic. 

Sec.  33.  Validity  of  State  Laws  Providing  for  "Full  Crews"  on  In- 
terstate Trains. 

Sec.  34.     State  Regulations  or  Charges  for  Transportation  by  Water. 

Sec.  35.  Statutory  Enactments  of  States  Requiring  Facilities  and  Ap- 
pliances on  Interstate  Trains. 

Sec.  36.  Power  of  States  over  Interstate  Employers  and  Employees  in 
Absence  of  Federal  Legislation. 

Sec.  37.  Interstate  Messages  by  Telegraph  Prior  to  Amendment  of 
1910  to  Act  to  Regulate  Commerce. 

Sec.  38.  State  Laws  Regulating  Interstate  and  Foreign  Messages  of 
Telegraph,    Telephone,    and    Cable    Companies,  Invalid. 

Sec.  39.  States  May  Not  Regulate  "Ticker  Service"  of  Interstate 
Telegraph  Companies. 

Sec.  40.  State  and  Municipal  Regulations  of  the  Interstate  Business 
of  Express  Companies. 

Sec.  41.  Valid  Municipal  Regulations  of  Drivers  on  Streets  Carrying 
Interstate  Traffic. 

§  10,  Introductory.  Under  our  dual  form  of  govern- 
ment, presenting  the  rare  and  difficult  scheme  of  one 
general  government,  whose  action  extends  over  the 
whole,  but  which  possesses  only  certain  enumerated 
powers,  and  of  numerous  state  governments  which 
retain  and  exercise  all  powers  not  delegated  to  the 
Union,  contests  and  clashes  concerning  their  respective 
powers  must  constantly  arise. 

The  sole  authority  of  the  federal  government  during 
times  of  peace  over  common  carriers  within  the  states 
is  contained  in  the  commerce  clause  of  the  Constitution, 
which  provides  that  Congress  may  regulate  interstate 
and  foreign  commerce.  The  federal  government  may 
not,  therefore,  regulate  or  control  carriers  engaged 
exclusively  in  intrastate  commerce  or  even  the  intrastate 
business  of  interstate  carriers;  for  all  the  attributes  of  a 
sovereignty  not  delegated  to  Congress  by  the  commerce 
clause,  have  been  retained  by  the  states  over  common 
carriers  operating  within  their  borders  and  they  may 


§11]  Statk    AM)    Federal    Powers.  37 

exercise  their  power  and  control  over  all  transporta- 
tion exclusively  within  their  boundaries  to  the  same 
extent  that  the  national  government  exercises  over 
transportation  from  one  state  to  another  and  to  foreign 
countries. 

In  this  chapter  the  author  will  discuss  the  prin- 
ciples determining  the  respective  powers  of  the  states 
and  the  national  government  during  times  of  peace 
over  interstate  common  carriers  and  transportation 
from  one  state  to  another  and  to  foreign  countries  in 
the  light  of  the  controlling  decisions  of  the  federal 
Supreme  Court.  The  power  of  the  federal  government 
over  common  carriers  under  the  war  clause  of  the  consti- 
tution is  considered  in  the  next  chapter. 

§  11.  General  Principles  Determining  State  and 
National  Control  Over  Interstate  Carriers  and  Trans- 
portation. The  respective  powers  of  the  states  and 
the  national  government  over  subject  matters  included 
within  the  term  "interstate  commerce"  or  "commerce 
among  the  states"  are  divisible  into  three  classes: 
first,  those  over  which  the  power  of  Congress  is  ex- 
clusive and  the  states  cannot  reguhite  at  all;  second, 
those  over  which  the  states  may  regulate  in  the  absence 
of  legislation  by  Congress  and,  thii'd,  those  over  which 
the  powers  of  the  states  are  exclusive. 

The  first  class  includes  those  subject  matters  of 
interstate  commerce  which  are  national  in  their  char- 
acter and  admit  only  of  one  uniform  plan  or  system 
of  regulation  throughout  the  country.  These  are 
of  such  a  nature  as  to  demand  that,  if  regulated  at 
all,  their  regulation  should  be  prescribed  by  a  single 
authority.  As  to  the  sul)ject  matters  of  commerce  be- 
tween the  states  so  requiring  a  general  system  or 
uniformity  of  regulation,  the  power  of  Congress  is  ex- 
clusive and  any  state  legislation  attempting  to  regu- 
late them  is  void.^    Even  if  not  regulated  by  Congress, 

1.    South  Covington  &  C.  St.  R.       537.  59  L.  Ed.  350,  35  Sup.  Ct.  158, 
Co.  V.  City  of  Covington.  235  U.  S.      L.  R.   A.  1915  F  792;    Simpson   v. 


38 


CONTEOL   OVEK   CoMMON    CaREIEKS 


[§    11 


the  nonaction  of  the  national  assembly  is  an  expression 
of  its  will  that  the  subjects  therein  included  shall  re- 
main free  from  any  control  of  the  states.  This  prin- 
ciple underlies  the  doctrine  that  the  states  cannot,  under 
any  guise,  impose  direct  burdens  upon  interstate  com- 
merce; for  the  states  are  not  permitted  to  regulate  or 
restrain  that  which,  from  its  nature,  should  be  under  the 
control  of  one  authority. 


Shepard,  230  U.  S.  352,  57  L.  Ed. 
1511,  33  Sup.  Ct.  729,  348  L.  R.  A. 
(N.  S.)  1151,  Ann.  Cas.  1916  A  18; 
Texas   &  N.   0.   R.   Co.  v.   Sabine 
Tram  Co.,  227  U.  S.  Ill,  57  L.  Ed. 
442,  33  Sup.  Ct.  229;   Crenshaw  v. 
State,  227  U.  S.  389,  57  L.  Ed.  565, 
33  Sup.  Ct.  294;  Bacon  v.  People. 
227   U.   S.   504,   57  L.   Ed.   615,   33 
Sup.  Ct.  299;  Yazoo  &  M.  V.  R.  Co. 
V.  Greenwood  Grocery  Co.,  227  U. 
S.   1,    57   L.   Ed.   389,   33    Sup.   Ct. 
'213;  Railroad  Commission  of  Ohio 
V.  Worthington,  225  U.  S.  101,  56 
L.  Ed.  1004,  32  Sup.  Ct.  653;  Louis- 
ville &  N.  R.  Co.  V.  F.  W.  Cook 
Brewing  Co.,  223  U.  S.  70,  56  L.  Ed. 
355,    32    Sup.    Ct.    189;      Meyer    v. 
Wells,  Fargo  &  Co.,  223  U.  S.  298, 
56   L.    Ed.    445,    32    Sup.    Ct.    218; 
Herndon  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  970. 
30  Sup.  Ct.  633;   Western  U.  Tel. 
Co.  T.  State,  216  U.  S.  1,  54  L.  Ed. 
355,  30  Sup.  Ct.  190;  Pullman  Co. 
V.   State  ex  rel.  Coleman,   216   U. 
S.  56,  54  L.  Ed.  378,  30  Sup.  Ct.  232; 
Galveston,   H.   &  S.   A.   R.   Co.  v. 
State,  210  U.  S.  217,  52  L.  Ed.  1031, 
28   Sup.   Ct.   638;        Mississippi   R. 
Commission    v.    Illinois    Cent.    R. 
Co.,  203  U.  S.  335,  51  L.  Ed.  209, 
27  Sup.  Ct.  90;   Hanley  v.  Kansas 
City  S.  R.   Co.,  187  U.  S.   617,  47 
L.  Ed.  333,  23  Sup.  Ct.  214;   Louis- 
ville &  N.  R.  Co.  v.  Eubank,  184 
U.  S.  27,  46  L.  Ed.  416,  22  Sup.  Ct. 
277;    Schollenberger  v.  Com.,  171 


U.  S.  1,  43  L.  Ed.  49,  18  Sup.  Ct. 
757;    Vance  v.  W.  A.  Vandercook 
Co.,  170  U.  S.  438,  42  L.  Ed.  1100,  18 
Sup.    Ct.     674;     Covington     &     C. 
Bridge  Co.  v.  Com.,  15^  U.  S.  204, 
38   L.  Ed.   962,   14   Sup.   Ct.   1087; 
Brennan  v.  City  of  Titusville,  153 
U.   S.  289,  38  L.  Ed.  719,  14  Sup. 
Ct.  829;   McCall  v.  California,  136 
U.  S.  104,  34  L.  Ed.  391,  10  Sup. 
Ct.   881;    Leisy  v.   Hardin,  135  U. 
S.  100,  34  L.  Ed.  128,  10  Sup.  Ct. 
681;  Leloup  v.  Port  of  Mobile,  127 
U.   S.   640,   32  L.   Ed.   311,   8    Sup. 
Ct.  1380;  Philadelphia  &  Southern 
S.  S.  Co.  V.  Pennsylvania,  122  U.  S. 
326,  30  L.  Ed.  1200,  7  Sup.  Ct.  1118; 
Robbins  v.  Shelby  County  Taxing 
Dist.,  120  U.  S.  489,  30  L.  Ed.  694, 
7  Sup.  Ct.  592;   Wabash,  St.  L.  & 
P.  Ry.  Co.  V.  People,  118  U.  S.  557, 
30  L.  Ed.   244,  7  Sup.  Ct.  4;    Coe 
V  Errol,  116  U.  S.  517,  29  L.  Ed. 
715,  6  Sup.  Ct.  475;   Guy  v.  Balti- 
more, 100  U.  S.  434,  25  L.  Ed.  743; 
Hannibal  &  St.  J.  R.  Co.  v.  Husen, 
95  U.  S.  465,  24  L.  Ed.  527;  Case  of 
State  Freight  Tax,  15  Wall.  (U.  S.) 
232,  21  L.  Ed.  146;  Ward  v.  Mary- 
land, 12  Wall.    (U.   S.)    418,  20  L. 
Ed.     449;      The     Daniel     Ball    v. 
United    States,    10   Wall.    (U.    S.) 
557,    19    L.    Ed.    999;     Passenger 
Cases,  7  How.    (U.  S.)   283,  12  L. 
Ed.  702;    Crandal  v.  State,  6  Wall. 
(U.  S.)  35,  18  L.  Ed.    745;    M'Cul- 
loch  V.  Maryland,  4  Wheat.  (U.  S.) 
316,  4  L.  Ed.  579. 


§  11] 


State   and    Federal    Powers. 


39 


The  second  class  includes  tliose  subject  matters 
within  the  term  "interstate  commerce"  which  are  of 
such  a  nature  that,  if  regulated,  they  do  not  require 
or  demand  a  general  system  or  plan  of  uniform  regula- 
tion throughout  the  nation,  tliat  is,  those  subject 
matters  which  admit  of  a  diversity  of  regulation  and 
control  according  to  the  special  requirements  of  local 
conditions  in  each  state.  They  include  those  matters 
of  a  local  concern  as  to  which  it  is  impossible  to  derive 
from  the  constitutional  grant  of  authority  to  Congress 
an  intention  that  they  should  go  uncontrolled  pending 
federal  legislation  because  of  the  necessity  that  they 
should  not  remain  uncontrolled.  Hence,  in  the  absence 
of  regulation  by  Congress  as  to  such  matters  of  local 
concern,  the  states  may  continue  to  supply  the  needed 
rules  until  Congress  should  decide  to  supersede  them 
by  national   legislation.^ 


2.  Southern  R.  Co.  v.  Railroad 
Commission  of  Indiana,  236  U.  S. 
439,  59  L.  Ed.  661;  35  Sup.  Ct. 
304;  Atlantic  Coast  Line  R.  Co. 
V.  State,  234  U.  S.  280,  58  L.  Ed. 
1312,  34  Sup.  Ct.  829;  United 
States  V.  Pacific  &  A.  Ry.  &  Nav. 
Co.,  228  U.  S.  87,  57  L.  Ed.  742, 
33  Sup.  Ct.  443;  Chicago,  B.  & 
Q.  R.  Co.  V.  Cram,  228  U.  S.  70,  57 
L.  Ed.  734,  33  Sup.  Ct.  437;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Miller,  226 
U.  S.  513,  57  L.  Ed.  323,  33  Sup. 
Ct.  155;  Michigan  Cent.  R.  Co.  v. 
Vreeland,  227  U.  S.  59,  57  L.  Ed. 
417,  33  Sup.  Ct.  192.  Ann.  Cas. 
1914C  176;  Southern  Pac.  Co.  v. 
Schuyler,  227  U.  S.  601,  57  L.  Ed. 
662,  33  Sup.  Ct.  277,  43  L.  R.  A. 
(N.  S.)  901;  Adams  Exp.  Co.  v. 
Croninger,  226  U.  S.  491,  57  L. 
Ed.  314,  33  Sup.  Ct.  148,  44  L.  R. 
A.  (N.  S.)  257;  Southern  R.  Co. 
V.  Burlington  Lumber  Co..  225  U. 
S.  99,  56  L.  Ed.  1001.  32  Sup.  Ct. 
657;  Standard  Stock  Food  Co.  v. 
Wright.   225  U.   S.    540,   56  L.  Ed. 


1197,  32  Sup.  Ct.  784;  Savage  v. 
Jones,  225  U.  S.  501,  56  L.  Ed. 
1182,  32  Sup.  Ct.  715;  Missouri 
R.  Co.  V.  Castle,  224  U.  S.  541,  56 
L.  Ed.  875,  32  Sup.  Ct.  606;  Mon- 
dou  V.  New  York,  N.  H.  &  H.  R. 
Co.,  223  U.  S.  1,  56  L.  Ed.  327, 
32  Sup.  Ct.  169;  1  N.  C.  C.  A.  875. 
38  L.  R.  A.  (N.  S.)  44;  Southern 
R.  Co.  V.  Reid,  222  U.  S.  424,  5G 
L.  Ed.  257,  32  Sup.  Ct.  140; 
Northern  Pac.  R.  Co.  v.  State  ex 
rel.  Atkinson,  222  U.  S.  370,  56 
L.  Ed.  237,  32  Sup.  Ct.  160;  Bal- 
timore &  O.  R.  Co.  V.  Interstate 
Commerce  Commission,  221  U.  S. 
612,  55  L.  Ed.  878.  31  Sup.  Ct.  621; 
Southern  R.  Co.  v.  United  States, 
222  U.  S.  20,  56  L.  Ed.  72,  32  Sup. 
Ct.  2;  Chicago,  R.  I.  &  P.  R.  Co. 
V.  State,  219  U.  S.  453,  55  L.  Ed. 
290.  31  Sup.  Ct.  275:  Chicago,  I. 
&  L.  R.  Co.  V.  United  States,  219 
IT.  S.  486,  55  L.  Ed.  305,  31  Sup. 
Ct.  272;  Chiles  v.  Chesapeake  & 
O.  R.  Co.,  218  U.  S.  71,  54  L.  Ed. 
936,  30  Sup.  Ct.  667,  20  Ann.  Cas. 


40 


Control  Over  Common  Carriers 


[§  11 


The  third  class  includes  matters  limited  to  the 
internal  commerce  of  the  states  over  which  the  states 
have  exclusive  power.  State  legislation  covering  such 
subject  matters  is  valid  even  though  it  may  affect 
interstate  commerce  indirectly  or  incidentally.  The 
national  government  has  no  power  to  deal  with  the 
internal  concerns  of  the  states.  The  states  may,  free 
from  federal  control,  legislate  as  to  intrastate  commerce, 
provide  local  imi^rovements,  create  and  regulate  local 
facilities  and  adopt  protective  measures  of  a  reason- 
able character  in  the  interest  of  the  health,  safety, 
morals  and  the  welfare  of  their  people  although  inter- 
state commerce  may  thereby  be  incidentally  or  indirect- 
ly involved.^ 


980;  St.  Louis  Southwestern  R. 
Co.  V.  State,  217  U.  S.  136,  54  L. 
Ed.  698,  30  Sup.  Ct.  476,  29  L.  R. 
A.  (N.  S.)  802;  Standard  Oil  Co. 
of  Kentucky  v.  State  ex  rel.  Cates, 
217  U.  S.  413,  54  L.  Ed.  817,  30 
Sup.  Ct.  543;  Davis  v.  Cleveland, 
C,  C.  &  St.  L.  R.  Co.,  217  U.  S. 
157,  54  L.  Ed.  708,  30  Sup.  Ct.  463, 
27  L.  R.  A.  (N.  S.)  823,  18  Ann. 
Cas.  907;  Missouri  Pac.  Ry.  Co.  v. 
Larabee  Flour  Mills  Co.,  211  U. 
S.  612,  53  L.  Ed.  352,  29  Sup.  Ct. 
214;  Employers'  Liability  Cases, 
207  U.  S.  463,  52  L.  Ed.  297,  28 
Sup.  Ct.  141;  Martin  v.  Pittsburg 
&  L.  E.  R.  Co.,  203  U.  S.  284,  51 
L.  Ed.  184,  27  Sup.  Ct.  100,  8  Ann. 
Cas.  87;  Pennsylvania  R.  Co.  v. 
Hughes,  191  U.  S.  477,  48  L.  Ed. 
268,  24  Sup.  Ct.  132;  Lake  Shore 
&  M.  S.  Ry.  Co.  v.  State,  173  U.  S. 
285,  43  L.  Ed.  702,  19  Sup.  Ct.  465; 
Missouri,  K.  &  T.  R.  Co.  v.  Haber, 
169  U.  S.  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488;  Chicago,  M.  &  St. 
P.  Ry.  Co.  V.  Solan,  169  U.  S.  133, 
42  L.  Ed.  688,  18  Sup.  Ct.  289; 
Hennington  v.  State,  163  U.  S.  299, 
41  L.  Ed.  166,  16  Sup.  Ct.  108G; 
Pearsall  v.  Great  Northern  Ry.  Co., 


161  U.  S.  646,  40  L.  Ed.  836,  16  Sup. 
Ct.  705;  Louisville  &  N.  R.  Co.  v. 
State,  161  U.  S.  677,  40  L.  Ed. 
849,  16  Sup.  Ct.  714;  Plumley  v. 
Com.,  155  U.  S.  461,  39  L.  Ed.  223, 
15  Sup.  Ct.  154;  Johnson  v.  Chica- 
go &  P.  Elevator  Co.,  119  U.  S. 
388,  30  L.  Ed.  447,  7  Sup.  Ct.  254; 
Turner  v.  State,  107  U.  S.  38,  27 
L.  Ed.  370,  2  Sup.  Ct.   44. 

3.  Houston,  E.  &  W.  T.  R.  Co. 
v.  United  States,  234  U.  S.  342,  58 
L.  Ed.  1341,  34  Sup.  Ct.  833; 
Simpson  v.  Shepard,  230  U.  S. 
352,  57  L.  Ed.  1511,  33  Sup.  Ct. 
729,  48  L.  R.  A.  (N.  S.)  1151,  Ann. 
Cas.  1916A  18;  Missouri  Rate 
Cases,  230  U.  S.  474,  57  L.  Ed. 
1571,  33  Sup.  Ct.  975;  Oklahoma 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  220 
U.  S.  277,  55  L.  Ed.  465,  31  Sup. 
Ct.  434;  Northern  Pac.  R.  Co.  v. 
State  ex  rel.  McCue,  216  U.  S. 
579,  54  L.  Ed.  624,  30  Sup.  Ct.  423; 
Minneapolis  &  St.  L.  R.  Co.  v. 
Minnesota,  186  U.  S.  257,  46  L. 
Ed.  1151,  22  Sup.  Ct.  900;  Louis- 
ville &  N.  R.  Co.  V.  Eubank,  184 
U.  S.  27,  46  L.  Ed.  416,  22  Sup. 
Ct.  277;  Louisville  &  N.  R.  Co.  v. 
Com.,  183  U.  S.  503,  46  L.  Ed.  298, 


V2] 


State    and    Federal    Powers. 


41 


§  12.  Foregoing  Doctrines  Illustrated  and  Applied 
to  Divers  Phases  of  Interstate  Carriage  and  Trans- 
portation. The  business  of  an  interstate  carrier  and 
the  manifold  parts  and  phases  of  interstate  transpor- 
tation are  such  that  some  of  them  fall  within  the  first 
class  mentioned  in  the  foregoing  paragraph  and  others 
are  included  within  the  second  class.  The  line  of  dis- 
tinction between  the  first  two  classes  is  a  judicial  ques- 
tion often  of  much  difficulty,  the  solution  of  which 
is  not  to  be  found  in  any  single  and  exact  rule  of 
decision.  Adjudicated  illustrations  applying  the  general 
principles  are  hereinafter  given. 

A  state  has  no  power  to  levy  a  tax  upon  the  gross 
receipts  of  a  company  derived  from  rates  and  fares 
for  the  transportation  of  persons  and  goods  in  inter- 
state commerce;*  to  levy  a  tax  upon  a  railroad  company 
engaged  in  interstate  commerce  equal  to  one  per  cent 


22  Sup.  Ct.  95;  Smyth  v.  Ames, 
169  U.  S.  466,  42  L.  Ed.  819,  18 
Sup.  Ct.  418;  St.  Louis  &  S.  F. 
Ry.  Co.  V.  Gill,  156  U.  S.  649,  39 
L.  Ed.  567,  15  Sup.  Ct.  484;  Dow 
V.  Beidelman,  125  U.  S.  680,  31  L. 
Ed.  841,  8  Sup.  Ct.  1028;  Wabash, 
St.  L.  &  P.  Ry.  Co.  V.  People,  118 
U.  S.  557,  30  L.  Ed.  244,  7  Sup. 
Ct.  4;  Stone  v.  Farmers'  Loan 
&  Trust  Co.,  116  U.  S.  307,  29  L. 
Ed.  636,  6  Sup.  Ct.  334,  388,  1191; 
Baltimore  &  0.  R.  Co.  v.  State.  21 
Wall.  (U.  S.)  456,  22  L.  Ed.  678. 

The  rules  stated  in  the  text 
were  thus  succinctly  summarized 
by  Judge  Bond  in  Lusk  v.  Atkin- 
son, 268  Mo.  109,  186  S.  W.  703: 
"(1)  As  to  those  subjects  of  in- 
terstate commerce  which  require 
a  general  system  or  uniformity  of 
regulation,  the  power  of  Congress 
is  exclusive  whether  exercised  or 
not.  This  exclusive  power  results 
from  the  mere  grant  in  the  Con- 
stitution.     (2)    As   to   those   sub- 


jects which  do  not  fall  in  this 
class,  but,  owing  to  local  condi- 
tions, may  be  regulated  by  two  au- 
thorities, the  states  may  act  un- 
til Congress  does,  but  when  Con- 
gress acts  it  obliterates  all  state 
legislation  on  the  subject.  In  these 
cases  the  power  of  Congress  be- 
comes exclusive  only  when  exerted. 
(3)  The  reason  for  this  distinction 
is  that  interestate  commerce  prop- 
er, requiring  for  its  protection  sin- 
gleness of  regulation,  if  regulated 
at  all,  must  be  regulated  by  that 
authority  (Congress)  to  which  the 
Constitution  has  granted  the  pow- 
er. (4)  As  to  subjects  purely  lo- 
cal and  whose  regulation  does  not 
directly  or  indirectly  affect  inter- 
state traffic,  full  power  to  deal 
with  them  is  reserved  to  the  sev- 
eral states." 

4.  Philadelphia  &  Southern  S. 
S.  Co.  v.  Pennsylvania,  122  U.  S. 
326,  30  L.  Ed.  1200,  7  S>ip.  Ct.  1118. 


42 


CoNTBOL -Over  Common  Careiers 


[§  12 


of  its  gross  receipts;'^  to  levy  a  graded  charter  fee  upon 
the  entire  capital  stock  of  a  telegraph  company  engaged 
in  interstate  commerce  as  a  condition  of  doing  local 
business  in  the  state  ;'^  to  levy  a  tax  in  any  form  upon 
interstate  commerce  by  imposing  it  either  upon  the 
business  which  constitutes  such  commerce  or  the  privi- 
lege of  engaging  in  it;^  cannot  prevent  telegraph  com- 
panies transmitting  messages  from  one  state  to  another 
from  operating  lines  over  postal  routes  within  their 
borders,^  or  impose  unreasonable  restrictions  upon  such 
companies;''  cannot  prescribe  rates  for  interstate  rail- 
road transportation  even  with  respect  to  that  portion 
of  the  route  within  its  boundaries,^''  or  prescribe  rates 


5.  Galveston,  H.  &  S.  A.  Ry. 
Co.  v.  State,  210  U.  S.  217,  52  L. 
Ed.  1031,  28  Sup.  Ct.  638. 

6.  Western  U.  Tel.  Co.  v.  State 
ex  rel.  Coleman,  216  U.  S.  1,  54 
L.  Ed.  35.5,  30  Sup.  Ct.  190. 

7.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.  V.  Secretary  of  Kansas,  240  U. 
S  227,  60  L.  Ed.  617,  36  Sup.  Ct. 
261;  See  also  St.  Louis  South- 
western R.  Co.  V.  State,  235  U. 
S.  350,  59  L.  Ed.  265,  35  Sup.  Ct. 
99;  Baltic  Min.  Co.  v.  Com.,  231 
U.  S.  68,  58  L.  Ed.  127,  34  Sup. 
Ct.  15;  Bacon  v.  People,  227  U. 
S.  504,  57  L.  Ed.  615,  33  Sup.  Ct. 
299;  Crenshaw  v.  State,  227  TT.  S. 
389,  57  L.  Ed.  565,  33  Sup.  Ct.  294; 
United  States  Exp.  Co.  v.  State, 
223  U.  S.  335,  56  L.  Ed.  459,  32 
Sup.  Ct.  211;  Meyer  v.  Wells, 
Fargo  &  Co.,  223  U.  S.  298,  56  L. 
Ed.  445,  32  Sup.  Ct.  218;  Pullman 
Co.  V.  State  ex  rel.  Coleman,  216 
U.  S.  56,  54  L.  Ed.  378,  30  Sup. 
St.  232;  Kelly  v.  Rhoads,  188  U. 
S.  1,  47  L.  Ed.  359,  23  Sup.  Ct.  259; 
Brennan  v.  City  of  Titusville,  153 
U.  S.  289,  38  L.  Ed.  719,  14  Sup. 
Ct.  829;  McCall  v.  California,  130 
U.  S.  104,  34  L.  Ed.  391,  10  Sup. 
Ct.  881;    Bobbins  v.  Shelby  County 


Taxing  Dist.,  120  U.  S.  489,  30 
L  Ed.  694,  7  Sup.  Ct.  592;  Case 
of  State  Freight  Tax,  15  Wall.  (U. 
S.)   232,  21  L.  Ed.  146. 

8.  Western  U.  Tel.  Co.  v.  At- 
torney General  of  Com.  of  Massa- 
chusetts, 125  U.  S.  530,  31  L.  Ed. 
790,   8   Sup.   Ct.   961. 

9.  Town  of  Essex  v.  New  Eng- 
land Tel.  Co.  of  Massachusetts,  239 
U.  S.  313,  60  L.  Ed.  301,  36  Sup. 
Ct.  102;  Western  U.  Tel.  Co.  v. 
City  of  Richmond,  224  U.  S.  160, 
56  L.  Ed.  710,  32  Sup.  Ct.  449; 
Western  U.  Tel.  Co.  v.  Pennsyl- 
vania R.  Co.,  195  U.  S.  540,  49  L. 
Ed.  312,  25  Sup.  Ct.  133,  1  Ann. 
Cas.  517;  Western  U.  Tel.  Co.  v. 
New  Hope,  187  U.  S.  419,  47  L.  Ed. 
240,  23  Sup.  Ct.  204;  Richmond  v. 
Southern  Bell  Telephone  &  Tele- 
graph Co.,  174  U.  S.  761,  43  L.  Ed. 
1162,  19  Sup.  Ct.  778;  St.  Louis  v. 
Western  U.  Tel.  Co.,  148  U.  S.  92, 
37  L.  Ed.  380,  13  Sup.  Ct.  485; 
Western  U.  Tel.  Co.  v.  Pendleton, 
122  U.  S.  347,  30  L.  Ed.  1187,  7 
Sup.  Ct.  1126;  Pensacola  Tel.  Co. 
V.  Western  U.  Tel.  Co.,  96  U.  S.  1, 
24  L.  Ed.  708. 

10.  Yazoo  &  M.  V.  R.  Co.  v. 
Greenwood  Grocery  Co.,  227  U.  S. 


§  12] 


State    and    Federal    Powers. 


43 


for  transportation  of  traffic  from  one  point  to  anotlier 
in  the  same  state  but  wliicli,  in  transit,  passes  through 
the  territory  of  another  state,''  or  require  a  railroad 
company  to  stop  through  interstate  passenger  trains 
at  a  station  when  the  local  service  otherwise  offered  is 
adequate  and  reasonable;'-  cannot  prevent  or  hamper  a 
foreign  corporation  from  suing  in  its  courts  to  collect 
the  purchase  price  of  merchandise  which  it  lawfully 
sold  in  interstate  commerce  though  it  may  be  required 
to  conform  to  the  prevailing  modes  of  procedure  in  tlie 
state  courts;'^  cannot  regulate  the  number  of  cars  to 
be  operated  on  a  street  railroad  between  two  cities  in 
different  states;'*  cannot  apply  a  long  and  short  haul 
clause  similar  to  Section  4  of  the  Interstate  Commerce 
Act,  to  shipments  from  a  place  outside  of  the  state  to  one 
within  the  stale,  and  a  shorter  haul  on  the  same  line 


1.  57  L.  Ed.  389,  33  Sup.  Ct.  213; 
Railroad  Commission  of  Ohio  v. 
Worthington,  225  U.  S.  101,  56  L. 
Ed.  1004,  32  Sup.  Ct.  653;  Hern- 
don  V.  Cliicago,  R.  I.  &  P.  R.  Co., 
218  U.  S.  135,  54  L.  Ed.  970,  30  Sup. 
Ct.  633;  Mississippi  R.  R.  Com- 
mission V.  Illinois  Cent.  R.  Co., 
203  U.  S.  335,  51  L.  Ed.  209,  27 
Sup.  Ct.  90;  Houston  &  T.  C.  R. 
Co.  V.  Mayes,  201  U.  S.  321,  50  L. 
Ed.  772,  26  Sup.  Ct.  491;  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co.  V. 
People  177  U.  S.  514,  44  L.  Ed. 
868,  20  Sup.  Ct.  722;  Covington  & 
C.  Bridge  Co.  v.  Com.,  154  U.  S. 
204,  38  L.  Ed.  962,  14  Sup.  Ct. 
1087;  Wabash,  St.  L.  &  P.  Ry. 
Co.  V.  People,  118  U.  S.  557,  30 
L.  Ed.  244,  7  Sup.  Ct.  4. 

11.  Ewing  V.  City  of  Leaven- 
worth, 226  U.  S.  464,  57  L.  Ed. 
303,  33  Sup.  Ct.  157;  Hanley  v. 
Kansas  City  S.  R.  Co..  187  U.  S. 
617,  47  L.  Ed.  333,  23  Sup.  Ct.  214; 
Crescent  Brewing  Co.  v.  Oregon 
Short  Line  R.  Co.,  24  Idaho  106. 
132  Pac.  975. 


12.  Herndon  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  218  U.  S.  135,  54  L.  Ed. 
970,  30  Sup.  Ct.  633;  Atlantic 
Coast  Line  R.  Co.  v.  Wharton,  207 
U.  S.  328,  52  L.  Ed.  230,  28  Sup. 
Ct.  121;  Atlantic  Coast  Line  R. 
Co.  v.  North  Carplina  Corporation 
Commission,  206  U.  S.  1,  51  L.  Ed. 
933,  27  Sup.  Ct.  585,  11  Ann.  Cas. 
398;  Mississippi  R.  Commission 
v.  Illinois  Cent.  R.  Co.,  203  U.  S. 
335,  51  L.  Ed.  209,  27  Sup.  Ct.  90; 
Lake  Shore  &  M.  S.  Ry.  Co.  v. 
State,  173  U.  S.  285,  43  L.  Ed.  702, 
19  Sup.  Ct.  405;  Gladson  v.  State, 
166  U.  S.  427,  41  L.  Ed.  1064,  17 
Sup.  Ct.  627;  Illinois  Cent.  R.  Co. 
V.  State,  163  U.  S.  142,  41  L.  Ed. 
107,  16  Sup.  Ct.  1096. 

13.  Sioux  Remedy  Co.  v.  Cope, 
235  U.  S.  197,  59  L.  Ed.  193,  35 
Sup.  Ct.  57. 

14.  South  Covington  &  C.  St. 
R.  Co.  V.  City  of  Covington,  235  U. 
S.  537,  59  L.  Ed.  350,  35  Sup.  Ct. 
158.  L.  R.  A.  1915F  792. 


44  CoN'TROL  Over  Common  Carriers  [<§  12 

in  the  same  direction  between  points  witiiin  the  state -/^ 
cannot  compel  an  express  company  doing  interstate 
business  to  take  out  a  municipal  license  in  order  to 
carry  on  its  interstate  business;"  cannot  regulate  the 
tolls  for  the  conveyance  of  passengers  on  an  interstate 
railroad  from  one  state  to  another;'^  cannot  authorize 
a  municipal  corporation  to  require  a  ferry  company 
operating  between  two  states  to  take  out  a  license  and 
pay  a  license  fee  as  a  condition  to  conducting  its  busi- 
ness ;^^  cannot  prescribe  the  rates  for  the  transportation 
of  property  by  railroad  between  two  points  in  the  same 
state  when  the  property  so  carried  is  destined  to  a 
foreign  country  ;^^  cannot  compel  a  foreign  corporation 
to  file  a  statement  with  a  state  board  before  it  can  carry 
on  interstate  commerce  in  the  state,^°  and  cannot 
prohibit  interstate  trade  in  litigimate  articles  of  com- 
merce.^^ 

On  the  other  hand,  in  the  absence  of  action  by 
Congress,  a  state  may  prescribe  reasonable  rates  for 
the  transportation  of  traffic  over  the  high  seas  between 
ports  in  the  same  state  when  not  connected  with  trans- 
portation by  rail;"  may  require  railroad  companies  to 
furnish  cars  within  a  reasonable  time  after  demand  for 
interstate   as  well    as   for  intrastate   shipments;''   may 

15.  Louisville  &  N.  R.  Co.  v.  20.  Buck  Stove  &  Range  Co.  v. 
Eubank,  184  U.  S.  27,  46  L.  Ed.  Vickers,  226  U.  S.  205,  57  L.  Ed. 
416,  22  Sup.  Ct.  277.                                189,  33  Sup.  Ct.  41. 

16.  Barrett  v.  City  of  New  York,  21.  West  v.  Kansas  Natural  Gas 
232  U.  S.  14,  58  L.  Ed.  483,  34  Sup.  ^o.,  221  U.  S.  229,  55  L.  Ed.  716,  31 
Ct.  203.                                                          Sup.  ct.  564,  35  L.  R.  A,    (N.  S.) 

17.  Covington  &  C.  Bridge  Co.  ^^93^  ^eisy  v.  Harden,  135  U.  S. 
v.  com.,  154  U.  S.  204,  38  L.  Ed.  ^^^^  3^  ^  ^^  ^^8,  10  Sup.  Ct. 
962   14  Sup.  Ct.  1087.  681;    Bowman  v.  Chicago  &  N.  W. 

18.  City  of  Sault  Ste.  Mane  v. 

±0.     V.  ly   ui  ^25  u.   S.   465,  31  L.   Ed. 

International  Transit  Co.,  234  U.  •'          ' 

S.  333,  58  L.  Ed.  1337,  34  Sup.  Ct.  '^^^'  ^  ^"P-  ^t.  689,  1062. 

826,  52  L.  R.  A.    (N.  S.)    574.  22.     Wilmington  Transp.   Co.  v. 

19.  Railroad  Commission  of  Railroad  Commission  of  Cali- 
Louisiana  v.  Texas  &  P.  R.  Co.,  fornia,  236  U.  S.  151,  59  L.  Ed. 
229  U.   S.  336,  57  L.  Ed.  1215,  33  508,  35  Sup.  Ct.  276. 

Sup.   Ct.    837;     Railroad   Commis-  23.    Illinois  Cent.  R.  Co.  v.  Mul- 

sion  of  Ohio  v.  Worthington,  225  berry  Hill  Coal  Co.,  238  U.  S.  275, 

U.  S.  101,  56  L.  Ed.  1004,  32  Sup.  59  L.  Ed.  1306,  35  Sup.  Ct.  760. 
Ct.  653. 


§  12] 


Statk    and    Federal    Powers. 


45 


regulate  liabilities  of  interstate  carriers  for  loss  and 
damage  to  interstate  sliipnients;^*  may  require  rail- 
road companies  to  place  safety  appliances  upon  freight 
and  passenger  cars  within  its  boundaries  although 
carrying  interstate  traffic;"  may  compel  carriers  to 
equip  their  locomotives  with  certain  prescribed  head- 
lights;^'' may  require  carriers  to  heat  their  passenger 
cars  although  used  in  transporting  interstate  pas- 
sengers;"' may  regulate  wharfage  eliarges  although 
payment  is  also  required  of  those  engaged  in  interstate 
commerce;-^  may  secure  safety  in  the  physical  opera- 
tion of  railroads  within  its  territory  even  though  the 
trains  carry  interstate  traffic  ;^^  may  enact  statutes 
requiring  certain  number  of  emploj^es  on  freight  trains;^" 
may  prohibit  the  shipment  into  other  states  of  fruit  un- 
fit for  consumption;"  may  make  provisions  for  the 
ventilation  and  fumigation  of  street  cars  on  a  street 
railroad  operated  between  two  cities  in  different  states 


24.  Charleston  &  W.  C.  R.  Co.  v. 
Varnville  Furniture  Co.,  237  U.  S. 
597,  59  L.  Ed.  1137,  35  Sup.  Ct.  715, 
Ann.  Cas.  1916D  333. 

25.  Southern  R.  Co.  v.  Railroad 
Commission  of  Indiana,  236  U.  S. 
439,  59  L.  Ed.  G61,  35  Sup.  Ct.  304: 
Erie  R.  Co.  v.  People,  233  U.  S. 
671,  58  L.  Ed.  1149,  34  Sup.  Ct. 
756,  52  L.  R.  A.  (N.  S.)  26p,  Ann. 
Cas.  1915D  138. 

26.  Atlantic  Coast  Line  R.  Co. 
V.  State,  234  U.  S.  280,  58  L.  Ed. 
1312,  34  Sup.  Ct.  829. 

27.  New  York,  N.  H.  &  H.  R. 
Co.  V.  People,  165,  U.  S.  628,  41 
L.  Ed.  853,  17  Sup.  Ct.  418. 

28.  Sands  v.  Manistee  River  Im- 
provement Co.,  123  U.  S.  288,  31 
L.  Ed.  149,  8  Sup.  Ct.  113;  Parkers- 
burg  &  O.  River  Transp.  Co.  v. 
City  of  Parkersburg,  107  U.  S.  691, 
27  L.  Ed.  584,  2  Sup.  Ct.  732;  Cin- 
cinnati, P.,  B.  S.  &  P.  Packet  Co. 
V.  Catlettsburg,  105  U.  S.  559,  26 
U    Ed.    1169;     Keokuk    Northern 


Line  Packet  Co.  v.  City  of  Keokuk, 
Iowa,  95  U.  S.  80,  24  L.  Ed.  377. 

29.  Atlantic  Coast  Line  R.  Co. 
v.  State,  234  U.  S.  280,  58  L.  Ed. 
1312,  34  Sup.  Ct.  829;  Missouri 
Pac.  R.  Co.  v.  State  ex  rel.  Taylor, 
216  U.  S.  262,  54  L.  Ed.  472,  30 
Sup.  Ct.  330;  Hennington  v.  State, 
163  U.  S.  299,  41  L.  Ed.  166,  16 
Sup.  Ct.  1086;  Nashville,  C.  &  St. 
L.  Ry.  Co.  v.  Alabama,  128  U.  S. 
96,  32  L.  Ed.  352,  9  Sup.  Ct.  28. 

30.  St.  Louis,  I.  M.  &  S.  R.  Co. 
V.  State,  240  U.  S.  518,  60  L.  Ed. 
776,  3G  Sup.  Ct.  443;  Chicago,  R. 
I.  &  P.  R.  Co.  V.  State,  219  U.  S. 
453,  55  L.  Ed.  290,  31  Sup.  Ct.  275. 

31.  Sligh  V.  Kirkwood,  237  U. 
S.  52,  59  L.  Ed.  835,  35  Sup.  Ct. 
501;  Savage  v.  Jones,  225  U.  S. 
501,  56  L.  Ed.  1182,  32  Sup.  Ct.  715; 
New  York  ex  rel.  Silz  v.  Hester- 
berg,  211  U.  S.  31,  53  L.  Ed.  75. 
29  Sup.  Ct.  10:  Kidd  v.  Pearson, 
128  U.  S.  1,  32  L.  Ed.  346.  9  Sup. 
Ct.  6. 


46  Control  Over  Common  Carriers  [^  12 

and  require  safety  appliances  on  such  cars;^'  may  regu- 
late the  liability  of  railroad  companies  to  their  employes 
for  injuries,  including  those  engaged  in  interstate  com- 
merce ;^^  may  lawfully  enact  a  statute  providing  that 
no  contract,  limiting  the  liability  of  a  carrier  to  less 
than  full  loss  for  damage  to  a  shipment,  shall  be  valid 
even  as  to  interstate  shipments;^*  may  fix  reasonable 
rates  for  ferriage  not  connected  with  railroads,  from 
its  shore  to  the  shores  of  another  state  as  well  as  rates 
for  return  tickets  from  its  shore  ;^^  may  enact  a  statute 
requiring  common  carriers  to  settle  claims  for  loss  and 
damage  to  property  transported,  including  interstate 
shipments ;^^  may  enforce  a  regulation  requiring  a  rail- 
road company  to  restore  service  of  transferring  cars 
between  the  lines  of  another  railroad  and  an  elevator 
in  aid  of  intrastate  and  interstate  commerce  alike;" 
may  allow  attorney's  fee  for  the  failure  of  a  carrier 
to  pay  within  thirty  days  a  bona  fide  claim  for  loss 
or  damage  to  property,  even  as  to  interstate  shipments ;^^ 
may  regulate  the  hours  of  service  of  employes  of  inter- 

32.  South  Covington  &  C.  St.  R.  Co.  v.  Hughes,  191  U.  S.  477, 
R.  Co.  V.  City  of  Covington,  235  48  L.  Ed.  268,  24  Sup.  Ct.  132; 
U.  S.  537,  59  L.  Ed.  350,  35  Sup.  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Ct.  158,  L.  R.  A.  1915F  792.  Solan,  169  U.  S.  133,  42  L.  Ed.  688, 

33.  Toledo,  St.  L.  &  W.  R.  Co.  18  Sup.  Ct.  289. 

V    Slavin,  236  U.  S.  454,  59  L.  Ed.  35.      Port    Richmond    &    B.    P. 

671,  35  Sup.   Ct.  306;     In  re   Sec-  Ferry  Co.  v.  Board  Chosen  Free- 

ond    Employers'    Liability    Cases,  holders  County  of  Hudson,  234  U. 

223  U.  S.  1,  56  L.  Ed.  327,  32  Sup.  S.  317,  58  L.  Ed.  1330,  34  Sup.  Ct. 

Ct.  169,  1  N.  C.  C.  A.   875,  38  L.  821. 

R.  A.  (N.  S.)  44;    Baltimore  &  O.  36.     Atlantic  Coast  Line  R.  Co. 

R.  Co.  V.  Interstate  Commerce  Com-  v.  Mazursky,  216  U.  S.  122,  54  L. 

mission,  221  U.  S.  612,  55  L.  Ed.  Ed.  411,  30  Sup.  Ct.  378. 

878,    31    Sup.    Ct.    621;     Adair    v.  37.      Missouri    Pac.    Ry.    Co.    v. 

United  States,  208  U.  S.  161,  52  L.  Larabee  Mills,   211   U.   S.   612,   53 

Ed.  436,  28  Sup.  Ct.  277,  13  Ann.  L.  Ed.  352,  29  Sup.  Ct.  214. 

Cas.   764;     Nashville,  C.   &   St.   L.  38.     Missouri,  K.  &  T.  R.  Co.  v. 

Ry.  Co.  V.  Alabama,  128  U.  S.  9G,  Harris,  234  U.   S.  412,  58  L.  Ed. 

32  L.  Ed.  352,  9  Sup.  Ct.  28;    Smith  1377,    34    Sup.    Ct.    790,    L.    R.    A. 

V.  Alabama,  124  U.  S.  465,   31  L.  1915E  942;     distinguishing  Atlan- 

Ed.  508,  8  Sup.  Ct.  564.  tic  Coast  Line  R.  Co.  v.  Riverside 

34.  Chicago,  R.  I.  &  P.  R.  Co.  Mills,  219  U.  S.  186,  55  L.  Ed.  167, 
V.  Cramer,  232  U.  S.  490,  58  L.  Ed.  31  Sup.  Ct.  164,  31  L.  R.  A.  (N. 
697,  34  Sup.  Ct.  383;    Pennsylvania  S.)  7. 


§  12]  State    and    Federal    Powers.  47 

state  carriers  within  its  boundaries,  although  some  are 
engaged  in  interstate  commerce;"'-'  may  authorize  the 
collection  of  inspection  fees  for  the  purpose  of  determin- 
ing the  weight,  condition,  quality  and  quantity  of  mer- 
chandise to  be  sold  within  or  without  a  state,  if  the 
amounts  collected  are  not  excessive  and  are  in  proper 
proportion  to  the  service  rendered  and  inspected  ;^°  may 
require  interstate  railroads  owning  terminal  yards  to 
interchange  cars  containing  intrastate  traffic  with  other 
carriers;*^  may  legislate  with  respect  to  pilotage;*^  may 
improve  harbors  and  construct  dams  and  bridges  across 
navigable  rivers  within  its  limits;*^  may  prevent  the 
spread  of  disease  by  the  enforcement  of  quarantine 
regulations  although  interstate  carriers  are  involved;" 
may  prohibit  the  consolidation  of  a  domestic  railroad 
corporation  w^ith  a  competing  line  although  both  are 
interstate  carriers;'*^  may  tax  articles  moving  in  inter- 
state commerce  when  stopped  in  transit  for  a  business 
purpose  and  thereby  securing  the  protection  of  the 
state,**^    and   may    compel    interstate    carriers    to    stop 

39.  Erie  R.  Co.  v.  People,  233  44.  Asbell  v.  State,  209  U.  S. 
U.  S.  671,  58  L.  Ed.  1149,  34  Sup.  251,  52  L.  Ed.  778,  28  Sup.  Ct.  485, 
Ct.  756,  52  L.  R.  A.  (N.  S.)  266,  14  Ann.  Cas.  1101;  Compagnie 
Ann.  Cas.  1915D  138.  Francaise  De  Navigation  a  Vapour 

40.  D.  E.  Foote  &  Co.  v.  Stan-  v.  Louisiana  State  Board  of 
ley,  232  U.  S.  494,  58  L.  Ed.  698,  34  Health,  186  U.  S.  380,  46  L.  Ed. 
Sup.  Ct.  377.  1209,  22  Sup.  Ct.  811;   Louisiana  v. 

41.  Grand  Trunk  R.  Co.  v.  Mich-  State,  176  U.  S.  1,  44  L.  Ed.  347,  20 
igan  R.  R.  Commission,  231  U.  S.  Sup.  Ct.  251;  Missouri,  K.  &  T. 
457,  58  L.  Ed.  310,  34  Sup.  Ct.  152.  Ry.  Co.  v.  Haber,  169  U.  S.  613,  42 

42.  Anderson    v.    Pacific    Coast       L.  Ed.  878,  18  Sup.  Ct.  488. 

S.  S.  Co.,  225  U.  S.  187,  56  L.  Ed.  ^'^-    Northern  Securities  v.  Unit- 

1047,  32  Sup.  Ct.  626.  ^d  States,  193  U.  S.  197,  48  L.  Ed. 

43.  Cummings  v.  Chicago,  188  '^'^'  "^  ^"P-  ^^-  ^^^'  Louisville  & 
U.  S.  410,  47  L.  Ed.   525,  23  Sup.  ^-  f "  Sf"  ^-  ^'^'''  ^'^  U.  S.  677, 

40    L.    Ed.    849,   16    Sup.    Ct.    714; 

Pearsall    v.    Great    Northern    Ry. 

Co.,  161  U.  S.  646,  40  L.  Ed.  838. 
Ed.  959,  5  Sup.  Ct.  423;    Pound  v.       jg  g^p    qj    ^q^ 

Turck.  95  U.  S.  459.  24  L.  Ed.  525;  46.      Susquehanna    Coal    Co.    v. 

Gilman    v.    Philadelphia.    3    Wall.       City   of   South    Amboy,   228    V.    S. 
(U.  S.)   713,  18  L.  Ed.  96.  JG65,  57  L.  Ed.  1015.  33  Sup.  Ct.  712. 


Ct.    472;      Cardwell    v.    American 
Bridge  Co.,    113    U.   S.    205,    28   L. 


48  Control  Over  Common  Carriers  [^  12 

their  interstate   trains  if  the   service   otherwise   given 
is  inadequate  for  local  needs."' 

§  13.  Federal  Laws  and  Regulations  Encroaching 
upon  Powers  of  the  States  over  their  Internal  Affairs, 
Invalid.  The  power  of  regulation  conferred  on  Congress 
by  the  commerce  clause,  is  limited  to  commerce  with 
foreign  nations,  among  the  several  states  and  with  the 
Indian  tribes.  When,  therefore.  Congress  undertakes 
to  enact  a  statute  which  can  only  be  valid  as  a  regula- 
tion of  commerce,  it  must  be  limited  to  the  subject 
matters  included  within  the  commerce  clause.  If  it 
is  not  so  limited,  it  is  in  excess  of  the  powers  of  Con- 
gress; for  it  is  well-settled  that  as  to  all  their  internal 
affairs,  the  states  retain  their  police  powers,  which  they, 
as  sovereign  nations,  possessed  prior  to  the  adoption 
of  the  national  Constitution  except  such  as  were  granted 
to  the  nation.*^ 

If  a  national  statute  establishes  a  regulation  appli- 
cable to  all  trade,  or  to  commerce  at  all  points,  or  at- 
tempts to  govern  commerce  wholly  between  citizens  of 
the  same  state,  it  is  an  exercise  of  a  power  not  confided 
to  Congress."'  For  example.  Congress  has  no  power  to 
prohibit  the  sale  of  a  particular  commodity  or  to  prohi- 

47  Chicago,  B.  &  Q.  R.  Co.  v.  58  L.  Ed.  107,  34  Sup.  Ct.  1;  Ex 
Railroad  Commission  of  Wiscon-  Parte  Webb,  225  U.  S.  663,  56 
sin  237  U.  S.  220,  59  L.  Ed.  926,  L.  Ed.  1248,  32  Sup.  Ct.  769;  Em- 
35  Sup    Ct    560  ployers'  Liability  Cases,  207  U.  S. 

48  Covington  &  C.  Bridge  Co.  463,  52  L.  Ed.  297,  28  Sup.  Ct.  141; 
V  Com.,  154  U.  S.  204,  38  L.  Ed.  Illinois  Cent.  R.  Co.  v.  McKen- 
962  14  Sup.  Ct.  1087;  Patterson  v.  dree,  203  U.  S.  514,  51  L.  Ed.  298, 
Com  97  U  S  501  24  L.  Ed.  1115;  27  Sup.  Ct.  153;  James  v.  Bowman, 
United  States  v.  Shauver,  214  Fed.  190  U.  S.  127,  47  L.  Ed.  979,  23  Sup. 
154-  United  States  v.  Boyer,  85  Ct.  678;  Baldwin  v.  Franks,  120 
Pg^'   425  U.   S.   678,   30   L.   Ed.   766,   7   Sup. 

49  United  States  v.  Barnow,  Ct.  656,  763;  Civil  Rights  Cases, 
239  U  S.  74,  60  L.  Ed.  155,  36  Sup.  109  U.  S.  3,  27  L.  Ed.  835,  3  Sup. 
Ct  19-  Southern  Ry.  Co.  v.  Rail-  Ct.  18;  United  States  v.  Harris, 
road  Commission  of  Indiana,  236  106  U.  S.  629,  27  L.  Ed.  290,  1  Sup. 
U  S  439  59  L.  Ed.  661,  35  Sup.  Ct.  601;  United  States  v.  Fox,  95 
Ct  304;  'Illinois  Cent.  R.  Co.  v.  U.  S.  670,  24  L.  Ed.  538;  United 
De  Fuentes,  236  U.  S.  157,  59  L.  States  v.  Reese,  92  U.  S.  214,  23  L. 
Ed  517  35  Sup.  Ct.  275;  United  Ed.  563;  Karem  v.  United  Stales, 
States  V.   Sandoval,  231  U.   S.  28,  57  C.  C.  A.  486,  121  Fed.  250. 


§  13] 


State  ani>  Fkdkkal  P(j\vej{s. 


49 


bit  trade  within  the  limits  of  a  state  ;^°  nor  may  Congress 
require  a  license  for  tlie  carrying  on  of  the  internal 
commerce  of  a  state.''  A  congressional  enactment  pre- 
scribing the  liability  of  an  interstate  carrier  to  those 
of  its  employes  who  are  engaged  wholly  in  intrastate 
commerce,  or  in  work  having  no  substantial  connection 
with  or  real  relation  to  interstate  commerce,  is  beyond 
the  power  of  the  federal  government.'^^  A  regulation 
prescribed  by  the  Secretary  of  Agriculture  under  a  feder- 
al statute  authorizing  him  to  prevent  the  spread  of  con- 
tagious and  infectious  diseases  among  livestock'^'*  ap- 
plying to  intrastate  commerce,  is  invalid/^  A  federal 
statute,  the  provisions  of  which  in  effect  entitled  negroes 
to  the  equal  enjoyment  of  all  accommodations  in  hotels, 
public  conveyances,  theatres  and  other  places  of  public 
amusement  granted  to  white  persons,^^  was  void,  be- 
cause in  excess  of  the  power  conferred  upon  Congress 
under  the  commerce  clause  and  an  encroachment  upon 
the  powers  reserved  to  the  states  respectively.^^ 


50.  United  States  v.  Dewitt,  9 
Wall.  (U.  S.)  41,  19  L.  Ed.  593,  in 
which  the  court  said:  "That 
Congress  has  power  to  regulate 
commerce  with  foreign  nations 
and  among  the  several  States,  and 
with  the  Indian  tribes,  the  Consti- 
tution expressly  declares.  But 
this  express  grant  of  power  to  reg- 
ulate commerce  among  the  States 
has  always  been  understood  as 
limited  by  its  terms;  and  as  a  vir- 
tual denial  of  any  power  to  inter- 
fere with  the  internal  trade  and 
business  of  the  separate  States; 
except,  indeed,  as  a  necessary  and 
proper  means  for  carrying  into 
execution  some  other  power  ex- 
pressly granted  or  vested." 

51.  License  Cases,  5  How.  (U. 
S.)  504,  12  L.  Ed.  256;  Liconse 
Tax  Cases,  5  Wall.  (U.  S.)  462.  18 
L.  Ed.  497. 

52.  Employers'  Liability  Cases, 
207  U.  S.  46.3,  28  Sup.  Ct.  141,  52 


L.  Ed.  297,  in  which  Mr.  Justice 
White  said:  "The  act  then  being 
addressed  to  all  common  carriers 
engaged  in  interstate  commerce, 
and  imposing  a  liability  upon  them 
in  favor  of  any  of  their  employes, 
without  qualification  or  restric- 
tion as  to  the  business  in  which 
the  carriers  or  their  employes 
may  be  engaged  at  the  time  of 
the  injury,  of  necessity  includes 
subjects  wholly  outside  of  the 
power  of  Congress  to  regulate 
commerce." 

53.  32  Stat,  at  L.  791,  Chap. 
349. 

54.  Illinois  Cent.  R.  Co.  v.  Mc- 
Kendree,  203  U.  S.  514,  51  L.  Ed. 
298,   27   Sup.   Ct.   153. 

55.  Act  of  March  1.  1875,  18 
Stat,  at  L.  33,  Chap.  114. 

56.  Butts  v.  Merchants'  &  Min- 
ers' Transp.  Co.,  230  U.  S.  126.  57 
L.  Ed.  1422,  33  Sup.  Ct.  964;    Civil 


1   Control   rnrrlpfB   4 


50 


Oo:ntt:{Ol  Ovke  Common  Cabeiers 


[§  14 


§  14.  Federal  Regulations  to  be  Valid  Must  Have 
Real  or  Substantial  Connection  with  Interstate  Com- 
merce. The  power  of  Congress  under  the  commerce 
clause  to  regulate  interstate  commerce  is  not  without 
other  limitations.  If  a  national  law  passed  pursuant  to 
the  constitutional  grant  is  not,  in  a  real  and  substantial 
sense,  a  regulation  of  commerce,  it  is  in  excess  of  the 
constitutional  power  of  Congress.^'  All  rules  prescribed 
for  the  conduct  of  interstate  commerce,  in  order  to  be 
within  the  competency  of  Congress  under  its  power  to 
regulate  commerce  among  the  states,  must  have  some 
real  or  substantial  relation  to  or  connection  with  the 
commerce  regulated  ;^'^  but  when  a  particular  subject 
matter  is  within  the  legislative  power  of  Congress  to 
regulate,  the  extent  of  the  regulation  depends  upon  the 
nature  and  character  of  the  subject  and  what  is  appro- 
priate to  its  regulation."  Congress,  as  an  incident  to 
its  power  to  regulate  commerce,  may  adopt  not  only 


Rights   Cases,  109   U.   S.   3,   27   L. 
Ed.  835,  3  Sup.  Ct.  18. 

57.  Wilson  v.  New,  243  U.  S 
332,  61  L.  Ed.  755,  37  Sup.  Ct.  298. 

58.  Greenleaf-Johnson  Lumber 
Co.  V.  Garrison,  237  U.  S.  251,  59 
L.  Ed.  939,  35  Sup.  Ct.  551;  Erie 
R.  Co.  V.  Williams,  233  U.  S.  685, 
58  L.  Ed.  1155,  34  Sup.  Ct.  761, 
51  L.  R.  A.  (N.  S.)  1097;  McDer- 
mott  V.  State,  228  U.  S.  115,  57  L. 
Ed.  754,  33  Sup.  Ct.  431,  47  L.  R. 
A.  (N.  S.)  984,  Ann.  Cas.  1915A  39; 
Hipolite  Egg  Co.  v.  United  State.=«, 
220  U.  S.  45,  55  L.  Ed.  364,  31  Sup. 
Ct.  364;  Adair  v.  United  States. 
208  U.  S.  161,  13  Ann.  Cas.  764,  52 
L.  Ed.  436,  28  Sup.  Ct.  277;  In 
re  Debs,  158  U.  S.  564,  39  L.  Ed. 
1092,  15  Sup.  Ct.  900;  M'Culloch 
V.  Maryland,  4  "Wheat  (U.  S.)  316, 
4  L.  Ed.  579. 

59.  Caminetti  v.  United  States, 
242  U.  S.  470,  61  L.  Ed.  442,  37 
Sup.  Ct.  192,  L.  R.  A.  1915F  502, 
Ann.  Cas.  1917B  1168;    Clark  Dis- 


tilling Co.  V.  Western  Maryland 
R.   Co.,   242   U.   S.   311,   61   L.   Ed. 

326,  37  Sup.  Ct.  180,  L.  R.  A. 
1917B  1218,  Ann.  Cas.  1917B  845; 
In  re  Second  Employers'  Liabil- 
ity Cases,  223   U.   S.  1,   56  L.  Ed. 

327,  32  Sup.  Ct.  169,  1  N.  C.  C.  A. 
875,  38  L.  R.  A.  (N.  S.)  44;  Hoke 
V.  United  States,  227  U.  S.  308, 
57  L.  Ed.  523,  33  Sup.  Ct.  281,  43 
L.  R.  A.  (N.  S.)  906,  Ann.  Cas. 
1913E  905;  Chicago,  B.  &  Q.  R. 
Co.  V.  McGuire,  219  U.  S.  549,  55 
L.  Ed.  328,  31  Sup.  Ct.  259;  At- 
lantic Coast  Line  R.  Co.  v.  River- 
side Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31  Sup.  Ct.  164,  31  L.  R.  A. 
(N.  S.)  7;  McLean  v.  State,  211 
U.  S.  539,  53  L.  Ed.  315,  29  Sup. 
Ct.  206;  Champion  v.  Ames,  188 
U.  S.  321,  47  L.  Ed.  492,  23  Sup. 
Ct.  321;  Interstate  Commerce 
Commission  v.  Brimson,  154  U.  S. 
447,  38  L.  Ed.  1047,  14  Sup.  Ct. 
1125. 


§  14J  State  and  Fedkral  Powers.  51 

means  necessary  but  convenient  to  its  exercise  includ- 
ing means  having  tlie  quality  of  police  regulations."" 
For  example,  allliougli  the  power  to  regulate  commerce 
includes  the  power  to  prescribe  the  rules  by  which  such 
commerce  must  be  governed,"^  and  a  large  discretion 
must  necessarily  be  given  to  Congress  to  select  the 
means  to  be  employed  in  such  regulation,"-  there  is  no 
substantial  or  real  connection  between  a  railroad  em- 
ploye's membership  in  a  labor  organization  and  the 
carrying  on  of  interstate  commerce,  and  hence,  a  federal 
statute  prohibiting  an  interstate  carrier  from  dis- 
charging an  employe  because  of  his  membership  in  a 
labor  organization,  is  invalid."^ 

On  the  other  hand,  a  federal  statute  limiting  the 
hours  of  service  of  employes  engaged  in  interstate  com- 
merce is  valid  for  the  reason  that  the  length  of  hours 
of  service  has  a  direct  relation  to  the  efficiency  of  the 
human  agencies  engaged  in  interstate  commerce."*  And 
so  a  statute  requiring  safety  appliances  on  cars  of  rail- 
roads engaged  in  interstate  commerce  is  valid  because 
it  tends  to  secure  the  safety  of  employes  and  travelers 
moving  from  one  state  to  another."^    Similarly,  a  federal 

60.  Caminetti  v.  United  States,  Sup.  Ct.  158;  Missouri,  K.  &  T. 
242  U.  S.  470,  61  L.  Ed.  442,  37  Sup.  Ry.  Co.  v.  Haber,  169  U.  S.  613,  12 
Ct.  192,  L.  R.  A.  1915F  502,  Ann.  L.  Ed.  878,  18  Sup.  Ct.  488;  In 
Cas.  1917B  1168;  Wilson  v.  Unit-  re  Debs,  158  U.  S.  564,  39  U  Ed. 
ed  States,  232  U.  S.  563,  58  L.  Ed.  1092,  15  Sup.  Ct.  900;  United 
728,  34  Sup.  Ct.  347;  Champion  States  v.  E.  C.  Knight  Co.,  156  U. 
V.  Ames,  188  U.  S.  321,  47  L.  Ed.  S.  1,  39  L.  Ed.  325,  15  Sup.  Ct.  249; 
492,  23  Sup.  Ct.  321;  Gloucester  In  re  Rahrer,  140  U.  S.  545,  35  L. 
Ferry  Co.  v.  State,  114  U.  S.  196.  Ed.  572,  11  Sup.  Ct.  865;  Brown 
29  L.  Ed.  158,  5  Sup.  Ct.  826.  v  Maryland,  12  Wheat  (U.  S.)  419, 

61.  Northern  Securities  Co.  v.  6  L.  Ed.   378. 

United   States,   193   U.   S.   197,   48  63.     Adair  v.  United  States,  208 

L.  Ed.  679,  24  Sup.  Ct.  436;    Wes-  U.   S.  161,  52  L.  Ed.  436,  28   Sup. 

tern  U.  Tel.  Co.  v.  Pendleton,  122  Ct.  277,  13  Ann.  Cas.  764. 

U.   S.  347,  30  L.  Ed.  1187,  7  Sup.  64.     Baltimore   &   0.    R.    Co.    v. 

Ct.  1126;   County  of  Mobile  V.  Kim-  Interstate  Commerce  Commission, 

ball,  102  U.  S.  691.  26  L.  Ed.  238;  221   U.   S.   612,   55  L.   Ed.    878.   31 

Almy  V.   California,   24   How.    (U.  Sup.  Ct.  621. 

S.)  169,  16  L.  Ed.  644.  65.    Texas  &  P.  R.  Co.  v.  Rigsby, 

62.  Johnson  v.  Southern  Pac.  241  U.  S.  33,  60  L.  Ed.  874,  36  Sup. 
Co.,  19G  U.  S.  1,  49  L.  Ed.  363,  25  Ct.  482;    Southern  R.  Co.  v.  Unit- 


52  Control  Over  Common  Carriers  [§  14 

statute  fixing  a  temporary  wage  Tegulation  between 
employers  and  employes  engaged  in  interstate  commerce 
is  valid  when  the  interstate  commerce  of  the  country 
was  threatened  with  interruption  through  a  strike  be- 
cause of  the  failure  of  the  employers  and  employes  to 
agree  upon  a  scale  of  wages.*^*^  In  upholding  the  valid- 
ity of  the  Act  of  Congress,  known  as  the  Adamson 
law,  which  declared  that  eight  hours  shall,  in  all  con- 
tracts for  labor  service,  be  deemed  a  days  work  and 
the  measure  or  standard  of  a  days  work  for  the  pur- 
pose of  reckoning  the  compensation  for  services  of  em- 
ployes employed  in  interstate  commerce,  Chief  Justice 
White,  in  the  cited  case,  said:  "In  the  presence  of 
this  vast  body  of  acknowledged  powers  there  would 
seem  to  be  no  ground  for  disputing  the  power  which 
was  exercised  in  the  act  which  is  before  us  so  as  to 
prescribe  by  law  for  the  absence  of  a  standard  of  wages, 
caused  by  the  failure  to  exercise  the  private  right  as 
a  result  of  the  dispute  between  the  parties, — that  is, 
to  exert  the  legislative  will  for  the  purpose  of  settling 
tlie  dispute,  and  bind  both  parties  to  the  duty  of  ac- 
ceptance and  compliance,  to  the  end  that  no  individual 
dispute  or  difference  might  bring  ruin  to  the  vast  in- 
terests concerned  in  the  movement  of  interstate  com- 
merce, for  the  express  purpose  of  protecting  and  preserv- 
ing which  the  plenary  legislative  authority  granted 
to  Congress  was  reposed.  This  result  is  further  demon- 
strated, as  we  have  suggested,  by  considering  how  com- 
pletely the  purpose  intended  to  be  accomplished  by 
the  regulations  which  have  been  adopted  in  the  past 
would  be  rendered  unavailing  or  their  enactment  inex- 
plicable if  the  power  was  not  possessed  to  meet  a  situa- 
tion like  the  one  with  which  the  statute  dealt.  What 
would  be  the  value  of  the  right  to  a  reasonable  rate 
if  all  movement  in  interstate  commerce  could  be  stopped 
as  a  result  of  a  mere  dispute  between  the  parties  or 
their  failure  to  exert  a  primary  private  right  concern- 
ed states,  222  U.  S.  20,  56  L.  Ed.  66.  Wilson  v.  New,  243  U.  S. 
72,  32  Sup.  Ct.  2.                                        332,  61  L.  Ed.  755,  37  Sup.  Ct.  298. 


§  14J  Statk  and  Feuhkai.  Powers.  53 

ing  a  matter  of  interstate  commerce?  Again,  what 
purpose  would  be  subserved  by  all  the  regulations 
established  to  secure  the  enjoyment  by  the  public  of 
an  efficient  and  reasonable  service  if  there  was  no  power 
in  government  to  prevent  all  service  from  being  des- 
troyed? Further  yet,  what  benefits  would  flow  to 
society  by  recognizing  the  right,  because  of  the  public 
interest,  to  regulate  the  relation  of  employer  and  em- 
ploye and  of  the  employes  among  themselves,  and 
to  give  to  the  latter  peculiar  and  special  rights  safe- 
guarding their  persons,  protecting  them  in  case  of  ac- 
cid^mt,  and  giving  efficient  remedies  for  that  purpose, 
if  there  was  no  power  to  remedy  a  situation  created 
by  a  dispute  between  employers  and  employes  as  to 
rate  of  wages,  which,  if  not  remedied,  would  leave  the 
public  helpless,  the  whole  people  ruined,  and  all  the 
homes  of  the  land  submitted  to  a  danger  of  the  most 
serious  character?  And  finally,  to  what  derision  would 
it  not  reduce  the  proposition  that  government  had  power 
to  enforce  the  duty  of  operation  if  that  power  did  not 
extend  to  doing  that  which  was  essential  to  prevent 
operation  from  being  completely  stopped  by  filling  the 
interreg-num  created  by  an  absence  of  a  conventional 
standard  of  wages,  because  of  a  dispute  on  that  subject 
between  the  employers  and  employes,  by  a  legislative 
standard  binding  on  employers  and  employes  for  such 
a  time  as  might  be  deemed  by  the  legislature  reason- 
ably adequate  to  enable  normal  conditions  to  come  about 
as  the  result  of  agreements  as  to  wages  between  the 
parties?  We  are  of  opinion  that  the  reasons  stated 
conclusively  establish  that,  from  the  point  of  view  of 
inherent  power,  the  act  which  is  before  us  was  clear- 
ly within  the  legislative  power  of  Congress  to  adopt, 
and  that,  in  substance  and  effect,  it  amounted  to  an 
exertion  of  its  authority  under  the  circumstances  dis- 
closed to  compulsorily  arbitrate  the  dispute  between 
the  parties  by  establishing  as  to  the  subject  matter 
of  that  dispute  a  legislative  standard  of  wages  oper- 
ative and  binding  as  a  matter  of  law  upon  the  parties, 
a  power  none  the  less  efficaciously  exerted  because 


54  GoKTEOL  Over  Common  Caeeieks  [§  14 

exercised  by  direct  legislative  act  instead  of  by  the 
enactment  of  other  and  appropriate  means  providing 
for  the  bringing  about  of  such  result.  If  it  be  conceded 
that  the  power  to  enact  the  statute  was  in  effect  the 
exercise  of  the  right  to  fix  wages  where,  by  reason  of 
the  dispute,  there  had  been  a  failure  to  fix  by  agree- 
ment, it  would  simply  serve  to  show  the  nature  and 
character  of  the  regulation  essential  to  protect  the  public 
right  and  safeguard  the  movement  of  interstate  com- 
merce, not  involving  any  denial  of  the  authority  to  adopt 
it." 

§  15.  When  Congressional  Power  may  be  Validly 
Exercised  over  Intrastate  Subject  Matters.  Ordinarily 
the  power  of  Congress  covers  only  interstate  commerce 
and  an  attempted  regulation  of  intrastate  commerce 
is  invalid;"  but,  to  this  rule,  there  is  a  latter-day  ex- 
ception which  was  first  recognized  and  adopted  by  the 
Supreme  Court  in  1911,°^  in  holding  that  the  Safety 
Appliance  Act  could  be  validly  extended  so  as  to  in- 
clude cars  used  exclusively  in  intrastate  commerce,  and 
further  ampliiied  and  explained  in  1914'^''  when  the 
Supreme  Court  further  held  that  the  Interstate  Com- 
merce Commission  could  control  intrastate  rates  when 
necessary  to  prevent  discrimination  against  interstate 
rates.^° 

The  principle  elucidated  in  these  decisions  is  that 
whenever  there  exists  such  an  interblending  and  inter- 
dependency  between  interstate  and  intrastate  commerce 
that  the  freedom,  well  being,  or  safety  of  the  former 
depends  upon  the  latter,  Congress,  or  an  administrative 
body  delegated  with  national  authority,  may  regulate 
that  intrastate  commerce  in  so  far  as  it  is  necessary 

67.  Section  13,  supra.  70.    Section  200,  infra.    See  also 

68.  Southern  R.  Co.  v.  United  Illinois  C.  R.  Co.  v.  Public  Utilities 
States,  222  U.  S.  20,  56  L.  Ed.  72,  Commission,  245  U.  S.  493,  62  L. 
32  Sup.  Ct.  2.  Ed.  ,  38  Sup.  Ct.  170;    Amer- 

69.  Houston,  E.  &  W.  T.  R.  Co.  lean  Express  Company  v.  Cald- 
V.  United  States,  234  U.  S.  342,  Well,  244  U.  S.  617,  61  L.  Ed.  1352, 
58  L.  Ed.  1341,  34  Sup.  Ct.  833.  37  Sup.  Ct.  656. 


§  16]  State  and  Fedeil^l  Powers.  55 

to  preserve  the  freedom,  well  bein^,  or  safety  of  the 
commerce  within  the  exclusive  control  of  the  federal 
government.  For  example,  cars  containing  interstate 
and  intrastate  traffic  are  hanled  over  the  same  line 
of  railroad  in  the  same  trains  and  whatever  hani])ers 
the  movement  of  one  will  affect  the  movement  of  the 
other.  Hence,  there  is  snch  interdependence  between 
cars  in  moving  intrastate  traffic  and  those  used  in 
moving  interstate  traffic  that  Congress  may  properly 
legislate  and  regulate  safety  appliances  on  all  of 
them  as  long  as  they  are  used  on  highways  of  inter- 
state commerce. '^^ 

§  16.  When  Congress  Legislates  upon  a  Subject 
Matter  of  Commerce,  State  Laws  Covering  Same  Field 
are  Thereby  Superseded.  The  national  Constitution 
prescribes  that  the  laws  of  the  United  States  made 
pursuant  to  the  provisions  of  the  Constitution  shall 
be  the  supreme  law  of  the  land  and  the  judges  in  every 
state  shall  be  bound  thereby,  anything  in  the  Constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstand- 
ing.''- When  Congress  enacts  a  statute  in  pursuance 
of  its  power  to  regulate  interstate  commerce,  laws  and 
regulations  of  the  states,  covering  the  same  subject 
matter,  become  inoperative  in  so  far  as  the}^  affect  inter- 
state   commerce."     All   laws   of   the    states,    therefore, 

71.    Texas  &  P.  R.  Co.  v.  Rigsby,      constitutional    grant    of   authority 
241    U.    S.   33,   60   L.    Ed.   874,    36       over  that  subject." 
Sup.   Ct.   482,   in   which   the   court  72.    Article  6  of  the  Constitution 

said:  "We  are  therefore  brought  ot  the  United  States;  McCrary  v. 
to  the  conclusion  that  the  right  United  States,  195  U.  S.  27.  49  L. 
of   private  action   by   an   employe      ^^^  '^^^  24  Sup.  Ct.  769.  1  Ann.  Cas. 

561;  Northern  Securities  Co.  v. 
United  States,  193  U.  S.  197,  48 
L.  Ed.  679,  24  Sup.  Ct.  436;  Alissou- 

ri  K.  &  T.  Ry.  Co.  v.  Haber.  169  U. 
feet  in  a  safety  appliance  required       g    g^g^  ^^  j^    ^^    g^g    ^g  g^^p    ^^ 

by  the  act  of  Congress  to  be  made  ^gg 

secure,  has  so  intimate  a  relation  73      gavage  v.  Jones,  225  U.  S. 

to  the  operation  of  the  Act  as  a  501,   56   L.   Ed.   1182,   32   Sup.   Ct. 

regulation    of   commerce    between  715;    Southern  R.  Co.  v.  Reid,  222 

the   States   that   It   is   within   the  U.  S.  424,  53  L.  Ed.  257,  32  Sup.  Ct 


injured  while  engaged  in  duties 
unconnected  with  interstate  com- 
merce, but  injured  through  a  de- 


56 


Control  Over  Common  Carriers 


[§  16 


regulating  the  duties  and  liabilities  of  interstate  car- 
riers in  so  far  as  they  attempt  to  cover  the  same  field 
occupied  by  federal  laws  governing  them,  are  super- 
seded.^* ''The  grant  of  power  to  Congress  in  the  Con- 
stitution to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  it  is  conceded,  is  para- 


140;  Northern  Pac.  R.  Co.  V.  Wash- 
ington ex  rel.  Atkinson,  222  U.  S. 
370,  56  L.  Ed.  237,  32  Sup.  Ct. 
160;  Texas  &  P.  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  51 
L.  Ed.  553,  27  Sup.  Ct.  350,  9  Ann. 
Cas.  1075. 

74.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Harold,  241  U.  S.  371,  60  L.  Ed. 
1050,  36  Sup.  Ct.  665;  Armour  & 
Co.  V.  State,  240  U.  S.  510,  60  L. 
Ed.  771,  36  Sup.  Ct.  440,  Ann.  Cas. 
1916D  548;  Western  U.  Tel.  Co.  v. 
Brown,  234  U.  S.  542,  58  L.  Ed. 
1457,  34  Sup.  Ct.  955,  5  N.  C.  C.  A. 
1024;  Erie  R.  Co.  v.  New  York, 
233  U.  S.  671,  58  L.  Ed.  1149,  34 
Sup.  Ct.  756,  52  L.  R.  A.  (N.  S.) 
266,  Ann.  Cas.  1915D  138;  Erie  R. 
Co.  V.  Williams,  233  U.  S.  685,  58 
L.  Ed.  1155,  34  Sup.  Ct.  761,  51  L. 
R.  A.  (N.  S.)  1097;  Chicago,  R. 
I.  &  P.  R.  Co.  V.  Cramer,  232  U. 
S.  490.  58  L.  Ed.  697,  38  Sup.  Ct. 
383;  Barrett  v.  New  York,  232  U. 
S.  14,  58  L.  Ed.  483,  34  Sup.  Ct. 
203;  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  58  L.  Ed. 
591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 
109,  Ann.  Cas.  1917C  159;  Minne- 
sota Rate  Cases,  230  U.  S.  352, 
57  L.  Ed.  1511,  33  Sup.  Ct.  729,  48 
L.  R.  A.  (N.  S.)  1151,  Ann  Cas. 
1916A  18;  United  States  v.  Adams 
Exp.  Co.,  229  U.  S.  381,  57  L.  Ed. 
1237,  33  Sup.  Ct.  878;  Kansas  City 
S  R.  Co.  V.  Carl,  227  U.  S.  639, 
57  L.  Ed.  683,  33  Sup.  Ct.  391; 
New  York  Cent.  &  H.  River  R. 
Co.  V.  Board  Chosen  Freeholders 
County  of  Hudson,  227  U.  S.  248, 


57  L.  Ed.  499,  33  Sup.  Ct.  269; 
Missouri,  K.  &  T.  R.  Co.  v.  Harri- 
man,  227  U.  S.  657,  57  L.  Ed.  690, 
33  Sup.  Ct.  397;  Hampton  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  227  U. 
S.  456,  57  L.  Ed.  596,  33  Sup.  Ct. 
263 ;  Yazoo  &  M.  V,  R.  Co.  v.  Green- 
wood Grocery  Co.,  227  U.  S.  1,  57 
L.  Ed.  389,  33  Sup.  Ct.  213;  Adams 
Ex.  Co.  V.  Croninger,  226  U.  S. 
491,  57  L.  Ed.  314,  33  Sup.  Ct.  148, 
44  L.  R.  A.  (N.  S.)  257;  United 
States  V.  Union  Stock  Yard  &  Tran- 
sit Co.  of  Chicago,  226  U.  S.  286, 
57  L.  Ed.  226,  33  Sup.  Ct.  83: 
Southern  R.  Co.  v.  Reld,  222  U  S. 
424,  56  L.  Ed.  257,  32  Sup.  Ct.  140; 
Northern  Pac.  R.  Co.  v.  State,  222 
U.  S.  370,  56  L.  Ed.  237,  32  Sup. 
Ct.  IGO;  Western  U.  Tel.  Co.  v. 
Crovo,  220  U.  S.  364,  55  L.  Ed. 
498,  31  Sup.  Ct.  399;  Chicago,  R. 
I.  &  P.  R.  Co.  V.  State,  219  U.  S. 
453,  55  L.  Ed.  290,  31  Sup.  Ct.  275; 
Missouri  Pac.  Ry.  Co.  v.  Larabee 
Flour  Mills  Co.,  211  U.  S.  612,  53 
L.  Ed.  352,  29  Sup.  Ct.  214;  Em- 
ployers' Liability  Cases,  207  U.  S. 
463,  52  L.  Ed.  297,  28  Sup.  Ct.  141; 
Reid  V.  Colorado,  187  U.  S.  137,  47 
L.  Ed.  108,  23  Sup.  Ct.  92;  Mis- 
souri, K.  &  T.  Ry.  Co.  V.  Haber. 
169  U.  S.  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Hefley,  158  U.  S.  98,  39  L. 
Ed.  910,  15  Sup.  Ct.  802;  Western 
U.  Tel.  Co.  V.  Compton,  114  Ark. 
193,  169  S.  W.  946;  State  v.  Mis- 
souri Pac.  R.  Co.,  212  Mo.  658,  111 
S.  W.  500. 


§  17]  State  and  Federal  Powers.  57 

nioimt  over  all  legislative  powers  which,  in  consequence 
of  not  having  been  granted  to  Congress,  are  reserved 
to  the  States.  It  follows  that  any  legislation  of  a 
State,  although  in  i)ursuance  of  an  acknowledged 
power  reserved  to  it,  which  conflicts  with  the  actual 
exercise  of  the  power  of  Congress  over  the  subject  of 
commerce,  must  give  way  before  the  supremacy  of  the 
national  authority."" 

§  17.  Difficulty  of  Defining  Field  or  Subject  Mat- 
ter Covered  by  Congressional  Legislation.  While  the 
principle  that  congressional  action  over  interstate  com- 
merce renders  state  laws  occupying  the  same  field  or 
dealing  with  the  same  subject  matter  inoperative,  has 
been  unquestionably  established  and  repeatedly  ap- 
plied, the  greatest  difficulty  in  tlie  practical  adminis- 
tration of  the  law  is  to  determine  the  exact  boundary 
of  the  field  or  the  extent  of  the  subject  matter  covered.'" 
If  the  state  and  the  national  law  do  not  apply  to  the 
same  subject  matter,  both  are  valid.  If  they  cover 
the  same  field  or  subject  matter,  the  state  law  must 
give  way. 

No  phase  of  the  law  of  interstate  commerce  has 
occasioned  as  many  controversies  as  the  effect  of  the  en- 
actment of  a  national  statute  upon  similar  state  laws. 
The  controversies  have  not  been  as  to  the  principle  in- 
volved, but  as  to  its  application  to  particular  relations 
and   conditions.     For   instance,   prior   to   a   controlling 

75.  Smith  v.  Alabama,  124  U.  Pac.  R.  Co.  v.  State  ex  rel.  Atkin- 
S.  465,  31  L.  Ed.  508,  8  Sup.  Ct.  son,  222  U.  S.  370,  56  L.  Ed.  237, 
564.  32  Sup.  Ct.  160;    Grossman  v.  Lur- 

76.  City  of  Sault  Ste.  Marie  v.  ^^^^  jgg  U.  S.  189,  48  L.  Ed.  401,  24 
International  Transit  Co.,  234  U.  g  ^^  234;  Pennsylvania  R.  Co. 
S  333,  58  L.  Ed.  1337,  34  Sup.  Ct. 
82G,  52  L.  R.  A.  (N.  S.)  574;  Port 
Richmond  &  B.  P.  Ferry  Co.  v. 
Board  Chosen  Freeholders  County  '''^^^'  1^7  U.  S.  137.  47  L.  Ed. 
of  Hudson,  234  U.  S.  317.  58  L.  108.  23  Sup.  Ct.  92;  Chicago,  M. 
Ed.  1330,  34  Sup.  Ct.  821;  Savage  &  St.  P.  Ry.  Co.  v.  Solan,  169  U. 
V.  Jones,  225  U.  S.  501,  56  L.  Ed.  S.  133,  42  L.  Ed.  688,  18  Sup.  Ct. 
1182,   32   Sup.   Ct.   715;     Northern  289. 


V.  Hughes,  191  U.  S.  477,  48  L.  Ed. 
268,  24  Sup.  Ct.  132;    Reid  v.  Col- 


58  CONTEOL     OVEK     CoMMON     CaREIERS  [§    17 

decision  of  the  United  States  Supreme  Court,"  it  had 
been  both  affirmed'^  and  denied'^  by  respectable  courts 
that  by  the  enactment  of  tlie  Federal  Employers' 
Liability  Act,  all  state  workmen's  compensation  laws 
were  inapplicable  to  interstate  emploj^es  on  railroads. 
Again,  notwithstanding  the  passage  of  the  Safety  Ap- 
pliance Act  with  its  numerous  amendments  prescribing 
appliances  on  engines  and  cars  of  interstate  railroads, 
the  United  States  Supreme  Court  held  that  a  state 
law  requiring  headlights  on  engines  within  a  state, 
including  interstate  engines,  was  valid  and  did  not 
cover  the  same  field  as  the  federal  statute. ^°  On  the 
other  hand,  in  another  case,  the  same  court  held  that 
the  Safety  Appliance  Act  covered  the  subject  matter 
of  equipment  with  safety  appliances  of  all  cars  on  inter- 
state railroads  whether  engaged  in  intrastate  or  inter- 
state commerce,  so  that  a  state  law  penalizing  the 
movement  of  cars  in  intrastate  commerce  was  invalid." 

§  18.  Common  Law  Principles  as  Applied  in  State 
Courts  Superseded  as  to  Subject  Matter  Covered  by 
Federal  Statutes.  Whenever  Congress  enacts  a  stat- 
ute regulating  any  phase  of  interstate  commerce,  the 
national  act  is  then  supreme  and  exclusive  in  its  appli- 
cation. In  construing  and  interpreting  such  statutes, 
state  courts  must  follow  the  decisions  of  the  national 
courts.^"    In  addition,  all  federal  statutes  must  be  con- 

77.  New  York  Cent.  R.  Co.  v.  Valley  R.  Co.,  169  N.  Y.  App.  Div. 
Winfield,  244  U.  S.  147,  61  L.  Ed.       177,  154  N.  Y.  Supp.  G20. 

1045,  37  Sup.  Ct.  546,  14  N.  C.  C.  80.     Atlantic  Coast  Line  R.  Co. 

A.  680,  Ann.  Cas.  1917D  1139.  v.  State,  234  U.  S.  280,  58  L.  Ed 

78.  Smith  v.  Industrial  Ace.  1312,  34  Sup.  Ct.  829.  The  effect 
Commission  of  California,  26  Cal.  of  this  decision  was  destroyed  by 
App.  560,  147  Pac.  600;  Staley  v.  the  amendment  of  March  4,  1915 
Illinois  Cent.  R.  Co.,  268  111.  356,  to   the   Federal   Boiler   Inspection 

109  N.  E.  342,  L.  R.  A.  1916A  450.  Act,  36  Stat,  at  L.  913. 

79.  Rounsaville  v.  Central  R.  81.  Southern  R.  Co.  v.  Railroad 
Co.,  87  N.  J.  L.  371,  94  Atl.  392;  Commission  of  Indiana,  236  U.  S. 
Winfield  v.  New  York  Cent.  &  H.  439,  59  L.  Ed.  661,  35  Sup.  Ct.  304. 
River  R.  Co.,  216  N.  Y.  284,  10  N.  82.  United  States.  Central  Ver- 
C.  C.  A.  916,  Ann.  Cas.  1916A  817,  mont  R.   Co.  v.  White,   238  U.   S. 

110  N.   E.   614;     Moore  v.   Lehigh       507,   59   L.   Ed.   1433,   35    Sup.    Ct. 


§  18J  State  and  Fedeiu\l  Powers.  59 

strued  in  the  light  of  general  principles  of  law  and  com- 
mon law  rules  as  applied  and  accepted  in  the  federal 
courts.  When,  therefore,  Congress  legislates  upon  a 
subject  matter  of  commerce  controlled  by  state  laws 
in  the  absence  of  national  regulation,  the  principles 
,of  the  common  law  as  interpreted  and  applied  by  the 
state  courts  and  applicable  to  the  subject  matter  covered 
are  also  superseded,  and  the  new  statute  must  be  in- 
terijreted  in  the  light  of  common  law  rules  as  adopted  in 
federal  tribunals.^^ 

State  courts  often  fail  to  recognize  that  when  a 
state  law  is  superseded  by  congressional  action  over 
the  same  subject  matter,  the  common  law  rules  of  the 
state  dealing  with  the  same  subject  and  correlative 
matters  are  also  superseded;  but  such  is  now  the  es- 
tablished doctrine.  For  example,  in  determining  and 
applying  to  concrete  facts  the  principles  of  common 
law  negligence  and  assumption  of  risk  in  suits  under 
the  Federal  Employers'  Liability  Act,  the  rules  of  the 
common  law  as  interpreted  in  the  federal  courts  con- 

865,  9  N.  C.  C.  A.  265,  Ann.  Cas.  North  Carolina.     Dooley  v.  Sea- 

1916B  252.  board  Air  Line  R.  Co.,  163  N.  C. 

Kentucky.       Adams   Ex.   Co.   v.  454,  L.  R.  A.  1916E  185,  79  S.  E. 

Cook,  162  Ky.  592,  172  S.  W.  1096;  970. 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  Texas.    Gulf,  C.  &  S.  F.  Ry.  Co. 

V.  Nolan,  161  Ky.  205,  10  N.  C.  C.      v.  Vasbinder,  Tex.  Civ.  App. 

A.  812,  170  S.  W.  650.  ,  172  S.  W.  763. 

Missouri.     Security   State   Bank  Washington.  Bolch  v.  Chicago,  IM. 

V.  Simmons,  251  Mo.  2,  157  S.  W.  &  St.  P.  R.  Co.,  90  Wash.  47,  155 

585;     Barber   Asphalt   Paving  Co.  Pac.   422. 

V.  French,  158  Mo.  534,  54  L.  R.  83.    Southern  R.  Co.  v.  Prescott, 

A.  492,  58  S.  W.  934;  Haseltine  240  U.  S.  632,  60  L.  Ed.  836,  36  Sup. 
V.  Central  Nat.  Bank,  155  Mo.  66,  Ct.  469;  Southern  Exp.  Co.  v. 
56   S.  W.   895;     Cross  v.  Chicago,  Byers,   240   U.    S.   612,   60   L.   Ed. 

B.  &  Q.  R.  Co.,  191  Mo.  App.  202,  825,  36  Sup.  Ct.  410,  L.  R.  A. 
177  S.  W.  1127;  Bailey  v.  Mis-  1917A  197;  Adams  Exp.  Co.  v. 
souri  Pac.  R.  Co.,  184  Mo.  App.  Croninger,  226  U.  S.  491,  57  L. 
457,  171  S.  W.  44.  Ed.  314,  33  Sup.  Ct.  148,  44  L.  R. 

Nebraska.  Hadley  v.  Union  A.  (N.  S.)  257;  Missouri,  K.  &  T. 
Pac.  R.  Co.,  99  Neb.  349,  156  N.  R.  Co.  v.  Harriman,  227  U.  S.  657, 
W.    765.  57  L.  Ed.  690,  33  Sup.  Ct.  397. 


60  Control  Over  Common  Carriers  [§  18 

trol  in  all  actions,  and  must  be  followed.^*  If  this  princi- 
ple were  not  enforced  and  applied,  the  uniformity  which 
is  always  sought  to  be  acquired  by  the  passage  of 
national  legislation  would  be  destroyed  by  a  diversity 
of  views  among  the  state  courts  as  to  the  common  law 
rule  applicable. 

The  doctrine  is  well  illustrated  in  a  case  decided 
by  the  United  States  Supreme  Court  wherein  the  plain- 
tiff attempted  to  recover  damages  for  mental  anguish 
due  to  a  negligent  delay  in  transporting  a  casket  for 
his  wife's  funeral,  being  an  interstate  shipment.  The 
Supreme  Court  of  North  Carolina  affirmed  a  verdict 
for  $250  for  his  distress,  following  a  common  law  rule 
of  the  state  permitting  a  recovery  in  such  cases  for 
mental  suffering;  but  the  national  Supreme  Court  held 
that  the  common  law  rules  as  applied  in  the  federal 
courts  controlled,  and  a  recovery  was  denied.®^  In  an- 
other case  before  the  United  States  Supreme  Court,^® 
it  appeared  that  a  shipper  sued  a  carrier  for  the  loss 
of  goods  destroyed  by  fire  while  being  held  by  the 
carrier  as  a  warehouseman  at  the  destination  point, 
the  shipment  having  originated  in  another  state.  Under 
the  rules  of  the  common  law  as  interpreted  in  the  state 
courts,  when  the  plaintiff  had  shown  that  his  goods 
were  destroyed  by  fire,  the  burden  of  showing  that  the 
fire  was  not  caused  by  negligence,  was  upon  the  defend- 
ant. But  under  the  common  law  principles  as  applied 
in  the  federal  courts,  it  is  the  duty  of  a  warehouse- 
man to  djeliver  upon  proper  demand,  and  his  failure  to 

84.  Southern  Ry.  Co.  v.  Gray,  241  of   the   publication   of  this   work, 

U.  S.  333,  60  L.  Ed.  1030,  36  Sup..  this  case  was  pending  in  the  fed- 

Ct.  558;  Central  Vermont  R.  Co.  v.  eral    supreme    court    on    writ    of 

White,   238   U.   S.   507,   59   L.   Ed  certiorari. 

1433,  35  Sup.  Ct.  865,  9  N.  C.  C.  A.  gg     Southern  Exp.  Co.  v.  Byers, 
265,   Ann.    Cas.    1916B    252;     Sea- 
board Air  Line  R.  Co.  v.  Horton, 
233  U.   S.  492,  58  L.  Ed.  1062,  34 
Sup.  Ct.  635,  8  N.  C.  C.  A.  834.  L. 

R.  A.  1915C  1,  Ann.  Cas.  1915B  475.  86.    Southern  R.  Co.  v.  Prescott, 

Contra   Williams    v.    Pryor,    272  240   U.    S.   632,   60   L.   Ed.   836,   36 

Mo.  613,  200  S.  W.  53.    At  the  time  Sup.   Ct.  469. 


240  U.   S.   612,   60   L.    Ed.   825,   36 
Sup.    Ct.    410,    2    L.    R.    A.    1917A 

197. 


§  19J  State  and  Federal  Powers.  61 

do  so,  without  excuse,  is  regarded  as  making  a  prima 
facie  case  of  negligence.  If,  however,  it  appears  that 
the  loss  is  due  to  fire,  that  fact  in  itself  is  not  sufficient 
to  show  negligence  and  the  plaintiff  must  prove  that 
issue.  The  state  court  ai>]iliod  the  state  rule,  and  in 
reversing  the  judgment  obtained,  Mr.  Justice  Hughes, 
for  the  court,  said:  "In  the  present  case,  it  is  un- 
disputed that  the  loss  was  due  to  fire  which  destroyed 
the  Company's  warehouse  with  its  contents  including 
the  property  in  question.  The  fire  occurred  in  the  early 
morning  when  the  depot  and  warehouse  were  closed. 
The  cause  of  the  fire  did  not  appear,  and  there  was 
nothing  in  the  circumstances  to  indicate  neglect  on  the 
part  of  the  Railway  Company.  The  trial  court  denied 
the  motion  for  a  direction  of  a  verdict  and  charged 
the  jury  that  'the  burden  of  showing  that  there  was 
no  negligence  is  on  the  defendant.'  Applying  the  rule 
established  by  the  state  decisions  (Brunson  v.  Atlantic 
Coast  Line  R.  R.,  76  So.  Car.  9;  Fleiscliman  v.  Southern 
Railway,  76  So.  Car.  237;  see  also  Wardlaw  v.  S.  C.  R. 
R.,  11  Rich.  337),  the  Supreme  Court  of  the  State 
overruled  the  defendant's  objection  and  sustained  the 
judgment.  99  So.  Car.  242.  It  has  been  recognized  by  the 
state  court,  as  was  said  in  the  Fleischman  Case,  supra, 
that  the  rule  it  applies  is  a  'somewhat  exceptional 
rule'  to  which  the  court  adheres  'notwithstanding  the 
great  number  of  opposing  authorities  in  other  juris- 
dictions.' 76  So.  Car.  248.  For  the  reasons  we  have 
stated,  we  think  that  the  obligation  of  the  Railway 
Company  was  not  governed  by  the  state  law  and  that, 
in  this  view,  the  exceptions  of  the  plaintiff  in  error 
were  well  taken." 

§  19.  Power  of  States  to  Regulate  Interstate  Rates 
of  Carriers  Formerly  Upheld  by  Supreme  Court — the 
Granger  Cases.  That  a  state,  in  the  absence  of  nation- 
al legislation,  possessed  the  power  to  fix  and  determine 
the  rates  and  fares  for  the  transportation  of  persons 
and  property  on  railroads  from  within  its  boundary 
to  points  outside,  and  from  other  states  to  points  with- 


62 


CoNTEOL  Over  Common  Caekiees 


[§  19 


in  its  boundary,  was  formerly  affirmed  in  several  cases 
by  the  Supreme  Conrt  of  the  United  States.  The  exer- 
cise of  such  authority,  it  was  held,  did  not  amount  to 
a  regulation  of  commerce  among  the  states,  for  the 
reason  that  a  state  must  be  permitted  to  adopt  such 
rules  and  regulations  as  may  be  necessary  for  the  promo- 
tion of  the  general  welfare  of  the  people  within  its 
jurisdiction,  even  though  in  so  doing,  those  outside 
might  be  indirectly  affected.  Thus,  an  act  of  the  legis- 
lature of  the  state  of  Maryland  fixing  a  maximum 
passenger  fare  of  $2.50  from  Baltimore,  Md.  to  Washing- 
ton, D.  C,  was  held  to  be  valid  and  in  no  sense  a  re- 
striction upon  intercourse  and  traffic  between  the  dif- 
ferent  states."     The  same  doctrine  was  reaffirmed  in 


87.  Baltimore  &  0.  R.  Co.  v. 
State,  21  Wall.  (U.  S.)  456,  22  L. 
Ed.  678.  The  following  excerpt 
from  the  opinion  in  this  case  well 
illustrates  the  subsequent  radical 
change  in  the  views  of  the  court 
as  to  the  validity  of  such  state 
regulations:  "The  question  is, 
whether  such  a  stipulation  is,  or 
is  not.  a  violation  of  the  Consti- 
tution of  the  United  States,  as  be- 
ing a  restriction  of  free  intercourse 
and  traffic  between  the  different 
states.  That  the  road  is  one  of 
the  principal  thoroughfares  in  the 
country  for  interstate  travel  is 
conceded,  and,  indeed,  may  be  ju- 
dicially assumed.  As,  however, 
nearly  all  the  railroads  in  the 
country  are,  or  may  be,  used  to  a 
greater  or  less  extent  as  links  in 
through  transportation,  this  road 
cannot  in  principle  be  regarded 
as  an  exceptional  one  in  that  re- 
spect. Commerce  on  land  between 
the  different  States  is  so  striking- 
ly dissimilar,  in  many  respects, 
from  commerce  on  water,  that 
it  is  often  difficult  to  regard  them 
in  the  same  aspect  in  reference  to 
the       respective       constitutional 


powers  and  duties  of  the  State 
and  Federal  governments.  No 
doubt  commerce  by  water  wag 
principally  in  the  minds  of  those 
who  framed  and  adopted  the  Con- 
stitution, although  both  its  lan- 
guage and  spirit  embrace  com- 
merce by  land  as  well.  Maritime 
transportation  requires  no  artifi- 
cial roadway.  Nature  has  prepared 
to  hand  that  portion  of  the  instru- 
mentality employed.  The  naviga- 
ble waters  of  the  earth  are  recog- 
nized public  highways  of  trade 
and  intercourse.  No  franchise  is 
needed  to  enable  the  navigator  to 
use  them.  Again,  the  vehicles  of 
commerce  by  water  being  instru- 
ments of  intercommunication  with 
other  nations,  the  regulation  of 
them  is  assumed  by  the  National 
legislature.  So  that  State  inter- 
ference with  transportation  by 
water,  and  especially  by  sea,  is 
at  once  clearly  marked  and  dis- 
tinctly discernible.  But  it  is  dif- 
ferent with  transportation  by  land. 
This,  when  the  Constituton  was 
adopted,  was  entirely  performed  on 
common  roads,  and  in  vehicles 
drawn  by  animal  power.     No  one 


§  19] 


State  and  I'l'EnKKAL  Puwkhs. 


G3 


187G  wlu'ii  the  Granj^er  cases  were  decided.®*  Tu  lliese 
cases  the  court  upheld  the  validity  of  statutes  of  the 
states  of  Iowa,  Illinois,  Wisconsin  and  Minnesota,  which, 
according  to  their  terms,  also  applied  to  traffic  passing 
out  of  and  coming  into  those  states  respectively.  For 
example,  the  statute  of  Wisconsin  fixed  the  maximum 
fares  and  rates  to  be  charged  by  a  railroad  for  the 
transportation  of  persons  and  property  carried  within 
the  state,  or  taken  up  outside  of  the  state  and  brought 
within  it,  or  taken  up  inside  and  carried  without.     In 


at  that  day  imagined  that  the 
roads  and  bridges  of  the  country 
(except  when  the  latter  crossed 
navigable  streams)  were  not  en- 
tirely subject,  both  as  to  their 
construction,  repair,  and  manage- 
ment, to  State  regulation  and  con- 
trol. They  were  all  made  either 
by  the  States  or  under  their  au- 
thority. The  power  of  the  State 
to  impose  or  authorize  such  tolls, 
as  it  saw  fit,  was  unquestioned. 
No  one  then  supposed  that  the 
wagons  of  the  country,  which  were 
the  vehicles  of  this  commerce,  or 
the  horses  by  which  they  were 
drawn,  were  subject  to  National 
regulation.  The  movement  of  per- 
sons and  merchandise,  so  long  as 
it  was  as  free  to  one  person  as  to 
another,  to  the  citizens  of  other 
States  as  to  the  citizens  of  the 
State  in  which  it  was  performed, 
was  not  regarded  as  unconstitu- 
tionally restricted  and  trammelled 
by  tolls  exacted  on  bridges  or 
turnpikes,  whether  belonging  to 
the  State  or  to  private  persons. 
And  when,  in  process  of  time, 
canals  were  constructed,  no  a- 
mount  of  tolls  which  was  exacted 
thereon  by  the  State  or  the  com- 
panies that  owned  them,  was  ever 
regarded  as  an  infringement  of 
the  Constitution.  When  construc- 
ted by  the  State  Itself,  they  might 


be  the  source  of  revenues  largely 
exceeding  the  outlay  without  ex- 
citing even  the  question  of  con- 
stitutionality. So  when,  by  the 
improvements  and  discoveries  of 
mechanical  science,  railroads  came 
to  be  built  and  furnished  with  all 
the  apparatus  of  rapid  and  all- 
absorbing  transportation,  no  one 
imagined  that  the  State,  if  itself 
owner  of  the  work,  might  not 
exact  any  amount  whatever  of 
toll  or  fare  or  freight,  or  authorize 
its  citizens  or  corporations,  if 
owners,  to  do  the  same.  Had  the 
State  built  the  road  in  question  it 
might,  to  this  day,  unchallenged 
and  unchallengeable,  have  charged 
two  dollars  and  fifty  cents  for 
carrying  a  passenger  between 
Baltimore  and  W^ashington.  So 
might  the  railroad  company,  under 
authority  from  the  State,  if  it 
saw  fit  to  do  so.  These  are  posi- 
tions which  must  be  conceded.  No 
one  has  ever  doubted  them." 

88.  Stone  v.  Wisconsin.  94  U.  S. 
181,  24  L.  Ed.  102;  Winona  &  St. 
P.  R.  Co.  V.  Blake,  94  V.  S.  180, 
24  L.  Ed.  99;  Chicago,  M.  &  St.  P. 
R.  Co.  V.  Ackley,  94  U.  S.  179,  24 
L.  Ed.  99;  Peik  v.  Chicago  &  N. 
W.  Ry.  Co.,  94  U.  S.  164,  24  L.  Ed. 
97;  Chicago,  B.  &  Q.  Ry.  Co.  v. 
Iowa,  94  IT.  S.  155,  24  L.  Ed.  94. 


64  CoNTROi.  Over  Common  Carriers  [^  19 

deciding  tliat  such  statutes  were  not  invalid  under  the 
commerce  clause  as  an  attempted  regulation  of  interstate 
commerce,  the  court,  in  one  of  the  cases,  said:  ''As  to 
the  effect  of  the  statute  as  a  regulation  of  interstate 
commerce.  The  law  is  contined  to  State  commerce,  or 
such  inter-state  commerce  as  directly  aiTects  the  people 
of  Wisconsin.  Until  Congress  acts  in  reference  to  the 
relations  of  this  company  to  interstate  commerce,  it  is 
certainly  within  the  power  of  Wisconsin  to  regulate 
its  fares,  etc.,  so  far  as  they  are  of  domestic  relations. 
Incidentally,  these  may  reach  beyond  the  State.  But 
certainly,  until  Congress  undertakes  to  legislate  for 
those  who  are  without  the  State,  Wisconsin  may  pro- 
vide for  those  within,  even  though  it  may  indirectly 
affect  those  without." 

§  20.  State  Control  Over  and  Power  to  Regulate 
Rates   and   Charges   on   Interstate   Shipments   Denied. 

Finally  the  uncertainty  as  to  the  power  and  control 
of  the  states  over  the  rates  and  charges  made  by  rail 
carriers  for  the  transportation  of  passengers  and  freight 
in  interstate  and  foreign  commerce,  was  removed  with 
the  epochal  decision  of  the  national  Supreme  Court  on 
October  25,  1886  in  Wabash,  St.  L.  &  P.  Ry.  Co.  v. 
People,^^  in  which  the  court  held  that  a  state  had  no 
power  to  regulate  fares,  rates  and  tolls  for  the  trans- 
portation of  freight  and  passengers  from  one  state  to 
another  including  even  that  part  of  the  journey  within 
its  boundary. 

In  that  case  there  came  under  review  a  statute  of 
the  state  of  Illinois  providing  that  if  any  railroad  com- 
pany within  that  state,  should  charge  or  receive  for 
transporting  passengers  or  freight  of  the  same  class, 
the  same  or  a  greater  sum  for  any  distance  than  it  did 
for  a  longer  distance,  it  should  be  liable  to  a  penalty 
for  unjust  discrimination.  The  railroad  company  in 
that  case  made  such  a  discrimination  in  regard  to  goods 

89.    118  U.  S.  557,  30  L.  Ed.  244, 
7  Sup.  Ct.  4. 


§  20]  SiATK  AM)   I<'i:i)i;i;ai.   Powf.hs.  65 

transported  over  the  same  road  from  Peoria,  Til.,  and 
from  Gilman,  111.,  to  Now  York,  char^in*^  more  for  the 
same  class  of  goods  can-ied  from  (iilnian  than  from 
Peoria,  the  former  Ix-ing  eighty-six  miles  neaicr  the 
eity  of  Xew  York  than  the  latter,  this  difTerence  being 
in  the  lengtli  of  Ihe  line  in  the  state  of  Illinois.  The 
eourt  held  that  the  transi)()rtation  was  commerce  among 
the  states,  even  as  to  that  part  of  the  voyage  which  lay 
within  the  state  of  Illinois;  that  the  regulation  of  such 
commerce  was  confided  to  Congress  exclusively,  under 
its  power  to  regulate  commerce  between  the  states, 
and  that  the  statute  in  question,  being  intended  to 
regulate  the  transmission  of  persons  or  property  from 
one  state  to  another,  was  not  within  that  class  of  legis- 
lation which  the  states  may  enact  in  the  absence  of 
legislation  by  Congress.  "Let  us  see  precisely,"  said 
the  court,  "what  is  the  degree  of  interference  with 
transportation  of  property  or  persons  from  one  State  to 
another  which  this  statute  proposes.  A  citizen  of  New 
York  has  goods  which  he  desires  to  have  transported 
by  the  railroad  companies  from  that  city  to  the  in- 
terior of  tlie  State  of  Illinois.  A  continuous  line  of 
rail  over  which  a  car  loaded  with  these  goods  can  be 
carried,  and  is  carried  habitually,  connects  the  place  of 
shi]niient  with  the  place  of  delivery.  He  undertakes  to 
make  a  contract  with  a  person  engaged  in  the 
carrying  business  at  the  end  of  this  route 
from  whence  the  goods  are  to  start,  and  he 
is  told  by  the  carrier,  'I  am  free  to  make  a  fair  and 
reasonable  contract  for  this  carriage  to  the  line  of  the 
State  of  Illinois,  but  when  the  car  which  carries  these 
goods  is  to  cross  the  line  of  that  State,  pursuing  at  the 
same  time  this  continuous  track,  I  am  met  by  a  law  of 
Illinois  which  forbids  me  to  make  a  free  contract  con- 
cerning this  transportation  within  that  State,  and  sub- 
jects me  to  certain  rules  by  which  I  am  to  be  governed 
as  to  the  charges  which  the  same  railroad  company  in 
Illinois  may  make,  or  has  made,  with  reference  to  other 
persons  and  other  places  of  delivery.'  So  that  while 
that  carrier  might  be  willing  to  carry  these  goods  from 

1    Cuutrul   L'an-lLi-a   5 


66  Control  Over  Common  Carriers  [§  20 

the  city  of  New  York  to  the  city  of  Peoria  at  the  rate 
of  fifteen  cents  per  hundred  pounds,  lie  is  not  permitted 
to  do  so  because  the  Illinois  railroad  company  has 
already  charged  at  the  rate  of  twenty-five  cents  per 
hundred  pounds  for  carriage  to  Gilnian,  in  Illinois, 
which  is  eighty-six  miles  shorter  than  the  distance  to 
Peoria.  So,  also,  in  the  present  case,  the  owner  of  corn, 
the  principal  product  of  the  country,  desiring  to  trans- 
port it  from  Peoria,  in  Illinois,  to  New  York,  finds  a 
railroad  company  willing  to  do  this  at  the  rate  of  fifteen 
cents  per  hundred  pounds  for  a  car-load,  but  is  com- 
pelled to  pay  at  the  rate  of  twenty-five  cents  per  hundred 
pounds,  because  the  railroad  company  has  received  from 
a  person  residing  at  Oilman  twenty-five  cents  per 
hundred  pounds  for  the  transportation  of  a  car-load 
of  the  same  class  of  freight  over  the  same  line  of  road 
from  Gilman  to  New  York.  This  is  the  result  of  the 
statute  of  Illinois,  in  its  endeavor  to  prevent  unjust 
discrimination,  as  construed  by  the  Supreme  Court  of 
that  State.  The  effect  of  it  is,  that  whatever  may  be 
the  rate  of  transportation  per  mile  charged  by  the  rail- 
road company  from  Gilman  to  Sheldon,  a  distance  of 
twenty-three  miles,  in  which  the  loading  and  the  un- 
loading of  the  freight  is  the  largest  expense  incurred 
by  the  railroad  company,  the  same  rate  per  mile  must 
be  charged  from  Peoria  to  the  city  of  New  York.  The 
obvious  injustice  of  such  a  rule  as  this,  which  railroad 
companies  are  by  heavy  penalties  compelled  to  conform 
to,  in  regard  to  commerce  among  the  States,  when  ap- 
plied to  transportation  which  includes  Illinois  in  a  long 
line  of  carriage  through  several  States,  shows  the  value 
of  the  constitutional  provision  which  confides  the  power 
of  regulating  interstate  commerce  to  the  Congress  of 
the  United  States,  whose  enlarged  view  of  the  interests 
of  all  the  States,  and  of  the  railroads  concerned,  better 
fits  it  to  establish  just  and  equitable  rules.  Of  the  jus- 
tice or  propriety  of  the  principle  which  lies  at  the  founda- 
tion of  the  Illinois  statute  it  is  not  the  province  of  this 
court  to  speak.  As  restricted  to  a  transportation  which 
begins  and  ends  within  the  limits  of  the  State  it  may 


§  21 J  Statk  axi)  Fkdkhal  Powkhs.  67 

be  very  just  and  o(|iiitable,  and  il  certainly  is  the 
province  of  tlie  State  legislature  to  determine  that 
question.  But  when  it  is  attempted  to  apply  to  trans- 
portation throu.nh  an  entire  series  of  States  a  principle 
of  this  kind,  and  each  one  of  the  States  shall  attempt 
to  establish  its  own  rates  of  transportation,  its  own 
methods  to  prevent  discrimination  in  rates,  or  to  permit 
it,  the  deleterious  influence  upon  the  freedom  of  com- 
merce among  the  States  and  upon  the  transit  of  goods 
through  those  States  cannot  be  over-estimated.  That 
this  species  of  regulation  is  one  which  must  be,  if  es- 
tablished at  all,  of  a  general  and  national  character,  and 
cannot  be  safely  and  wisely  remitted  to  local  rules  and 
local  regulations,  we  think  is  clear  from  what  has  already 
been  said.  And  if  it  be  a  regulation  of  commerce,  as 
we  think  we  have  demonstrated  it  is,  and  as  the  Illinois 
court  concedes  it  to  be,  it  must  be  of  that  national 
character,  and  the  regulation  can  only  appropriately 
exist  by  general  rules  and  principles,  which  demand 
that  it  should  be  done  by  the  Congress  of  the  United 
States  under  the  commerce  clause  of  the  Constitution." 

§  21.  Passenger  Fares  for  Interstate  Journeys 
Prescribed  by  Municipal  Ordinances  and  Accepted  by 
Carriers  Invalid.  AVliilo  a  municipal  corporation  may 
grant  to  or  witliliold  from  vquasi, public  corporations  the 
use  of  its  streets,  it  cannot  thereby  indirectly  control  or 
regulate  interstate  commerce  by  attaching  conditions 
relating  thereto  to  the  franchises  of  a  corporation.  For 
example,  an  interurban  electric  railroad,  carrying  pas- 
sengers from  St.  Louis,  Mo.,  to  points  in  Illinois,  ac- 
cepted a  franchise  from  the  city  which  provided  that 
the  charge  for  a  continuous  passage  for  an  adult  pas- 
senger between  any  point  in  the  city  of  St.  Louis  to 
any  point  in  Grant  City,  III.,  should  not  exceed  five 
cents.  Such  a  provision  in  a  city  ordinance  is  in  con- 
flict with  the  Interstate  Commerce  Act  giving  the  Inter- 
state   Commerce    Commission    the    power    to    regulate 


6S  CoNTKOL  Over  Common  Carrieks  [§  21 

interstate  fares.^"  ''Not  only  has  a  railway  company," 
said  the  Commission  in  the  case  cited,  "a  recognized 
right  to  earn  a  fair  return  on  the  value  of  the  property 
which  it  devotes  to  the  public  service,  but  the  interest 
of  the  public  demands  that  carriers  engaged  in  inter- 
state commerce,  if  properly  constructed  and  wisely 
managed,  shall  receive  revenues  which  will  enable  them 
to  keep  their  property  and  equipment  in  good  repair 
and  maintain  their  service  at  the  highest  possible  point 
of  efficiency.  The  interest  of  the  public  in  this  res- 
pect is  paramount  to  the  private  rights  of  the  parties, 
whether  obtained  by  contract  or  otherwise,  and  in  de- 
termining the  reasonableness  and  the  propriety  of  pro- 
posed rates  or  fares  in  investigations  of  this  character 
the  Commission  can  not  consider  its  authority  limited 
or  its  judgment  controlled  by  the  terms  of  private 
agreements  which  the  carrier  or  carriers  respondent 
may  have  made  with  other  parties  purporting 
to  fix  the  measure  ,of  the  rates  in  question. 
Admitting  the  correctness  of  the  city's  con- 
tention that  a  contract  between  a  common  carrier  and 
a  municipality  differs  in  kind  from  a  private  contract 
between  a  carrier  and  a  shipper  for  the  establishment 
of  a  preferential  rate,  it  is  nevertheless  clear  that  both 
kinds  of  contracts  must  be  disapproved  to  the  extent 
that  they  seek  by  special  agreement  to  require  the  main- 
tenance of  rates  or  fares  which  are  unreasonable,  dis- 
criminatory, or  unremunerative,  or  to  the  extent  that 
they  seek  to  lodge  in  other  bodies  the  jurisdiction  over 
interstate  rates  and  fares  which  has  been  exj^ressly  con- 
ferred upon  this  Commission  by  federal  law." 

§  22.  Power  of  States  over  Intrastate  Commerce 
as  Broad  and  Exclusive  as  Control  of  Congress  over 
Interstate  Commerce.  Sliil)j(M:t  to  the  limitation  of  the 
Fourteenth  Amendment  to  the  national  Constitution^^  and 

90.  St.    Louis,    Missouri-Illinois  gia,  240  U.  S.  324,  60  L.  Ed.  G69,  36 
Passenger  Fares,  41  I.  C.  C.  584.  Sup.   Ct.    260;    O'Keefe   v.   United 

91.  Seahoard  Air  Line  Ry.   Co.  States,    240   U.    S.   294,    60   L.    Ed. 
V.    Railroad   Commission   of   Geor-  6.51,  36   Sup.  Ct.  313;    Chicago,  M. 


22] 


StATK    A.M)    FKDKHAr,    T^OWKHK. 


69 


the  doctrine  of  llic  Slireveport  case,"'  the  powers  of  a 
state  over  all  the  iiitiastate  hiisiness  and  transportation 
services  and  facilities  of  carriers  within  its  borders  are 
as  broad  and  as  all-inclusive  as  the  control  of  Con*^ress 
over  interstate  transportation  and  the  facilities  and 
services  connected  therewith  ;''■'  for  the  exclusive  riuhts 


&  St.  p.  R.  Co.  V.  state,  238  U.  S. 
491,  59  L.  Ed.  1423,  35  Sup.  Ct.  869, 
1.  R.  A.  1916A  1133;  Great  North- 
ern R.  Co.  V.  State  ex  rel.  State 
Railroad  &  Warehouse  Commis- 
sion, 238  U.  S.  340,  59  L.  Ed.  1337, 
35  Sup.  Ct.  753;  Northern  Pac.  R. 
Co.  V.  State  ex  rel.  McCue,  23G 
U.  S.  585,  59  L.  Ed.  735,  35  Sup. 
Ct.  429;  Florida  East  Coast  R.  Co. 
V.  United  States,  234  U.  S.  167,  58 
L.  Ed.  1267,  34  Sup.  Ct.  867;  Chi- 
cago, M.  &  St.  P.  R.  Co.  V.  State  of 
Iowa,  233  U.  S.  334,  58  L.  Ed.  98S, 
34  Sup.  Ct.  592;  Washington  ex  rel. 
Oregon  R.  &  Nav.  Co.  v.  Fairchild, 
224  U.  S.  510,  56  L.  Ed.  863,  32 
Sup.  Ct.  535;  Missouri  Pac.  R.  Co. 
V.  State,  217  U.  S.  196.  54  L.  Ed. 
727,  30  Sup.  Ct.  461.  18  Ann.  Cas. 
989;  Willcox  v.  Consolidated  Gas 
Co.,  212  U.  S.  19,  53  L.  Ed.  382, 
29  Sup.  Ct.  192,  48  L.  R.  A.  (N.  S.) 
1134,  15  Ann.  Cas,  1034;  Knoxville 
V.  Knoxville  Water  Co.,  212  U.  S. 
1,  53  L.  Ed.  371,  29  Sup.  Ct.  14S; 
Atlantic  Coast  Line  R.  Co.  v. 
North  Carolina  Corporation  Com- 
mission. 206  U.  S.  1,  51  L.  Ed.  933. 
27  Sup.  Ct.  585,  11  Ann.  Cas.  398: 
San  Diego  Land  &  Town  Co.  v. 
Jasper,  189  U.  S.  439,  47  L.  Ed. 
892,  23  Sup.  Ct.  571;  IMinneapolis 
&  St.  L.  R.  Co.  V.  Minnesota,  186 
IJ.  S.  257,  46  L.  Ed.  1151,  22  Sup. 
Ct.  900;  Wisconsin  M.  &  P.  R.  Co. 
V.  Jacobson,  179  U.  S.  287,  45  L. 
Ed.  194,  21  Sup.  Ct.  115;  San 
Diego  Land  &  Town  Co.  v.  City  of 
National  City,  174  U.  S.  739,  43 
L.  Ed.  1154,  19  Sup.  Ct.  804;  Lake 


Shore  &  M.  S.  Ry.  Co.  v.  Smith, 
173  U.  S.  684,  43  L.  Ed.  858,  19 
Sup.  Ct.  565;  Smyth  v.  Ames,  169 
U.  S.  466,  42  L.  Ed.  819,  18  Sup. 
Ct.  418;  Missouri  Pac.  R.  Co.  v. 
State,  164  U.  S.  403,  41  L.  Ed.  489, 
17  Sup.  Ct.  130;  St.  Louis  &  S.  F. 
Ry.  Co.  V.  Gill,  156  U.  S.  649,  39 
L.  Ed.  567,  15  Sup.  Ct.  484;  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  V.  Min- 
nesota, 134  U.  S.  418,  33  L.  Ed. 
970,  10  Sup.  Ct.  462,  702;  Dow  v. 
Beidelman,  125  U.  S.  680,  31  L. 
Ed.  841,  8  Sup.  Ct.  1028;  Stone  v. 
Farmers'  Loan  &  Trust  Co.,  116 
U.  S.  307,  29  L.  Ed.  636,  6  Sup. 
Ct.  334,  ;^88,   1191. 

92.  Houston,  E.  &  W.  T.  R.  Co. 
V.  United  States,  234  U.  S.  342,  58 
L.  Ed.  1341,  34  Sup.  Ct.  833.  See 
also  Illinois  C.  R.  Co.  v.  Public 
Utilities  Commission,  245  U.  S.  493, 
62  L.  Ed.  ,  38  Sup.  Ct.  170. 

93.  Michigan  Cent.  R.  Co.  v. 
Michigan  Railroad  Commission. 
236  U.  S.  615,  59  L.  Ed.  750.  35  Sup. 
Ct.  422;  Grand  Trunk  R.  Co.  v. 
Michigan  R.  R.  Commission,  231 
U.  S.  457,  58  L.  Ed.  310,  34  Sup.  Ct. 
152:  Southern  Pac.  Co.  v.  Camp 
bell,  230  U.  S.  537,  57  L.  Ed.  1610. 
33  Sup.  Ct.  1027;  Knott  v.  Chicago. 
R.  6  Q.  R.  Co.,  230  U.  S.  474,  57 
L.  Ed.  1571.  33  Sup.  Ct.  975;  Simp- 
son V.  Shepard,  230  U.  S.  352.  57 
L.  Ed.  1511,  33  Sup.  Ct.  729,  48  L. 
R.  A.  (N.  S.)  1151,  Ann.  Cas.  1916 
A  18;  Oklahoma  ex  rel.  West  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  220 
U.  S.  302.  55  L.  Ed.  474;  31  Sup. 
Ct.  442;   Oklahoma  v.  Atchison.  T. 


Control  Over  Common  Carhikrs 


L§  •-^•-^ 


aud  powers  of  the  states  over  their  own  territories  were 
established  with  the  beginning  of  our  government.  The 
people  of  the  united  colonies  in  separating  from  Great 
Britain,  changed  the  form,  but  not  the  substance  of 
their  government.  As  independent  states,  they  retained, 
for  the  purposes  of  government,  all  the  authority  and 


&  S.  F.  R.  Co.,  220  U.  S.  277,  55 
L.  Ed.  465,  31  Sup.  Ct.  234;  Mis- 
souri Pac.  R.  Co.  V.  State  ex  rel. 
Taylor,  216  U.  S.  262,  54  L.  Ed. 
472,  30  Sup.  Ct.  330;  General  Oil 
Co.  V.  Crain,  209  U.  S.  211,  52  L. 
Ed.  754,  28  Sup.  Ct.  475;  Atlan<:ic 
Coast  Line  R.  Co.  v.  North  Caro- 
lina Corporation  Commission,  206 
U.  S.  1,  11  Ann.  Cas.  398,  51  L. 
Ed.  933,  27  Sup.  Ct.  585;  Seaboard 
Air  Line  Ry.  Co.  v.  State  ex  rel. 
Ellis,  203  U.  S.  261,  51  L.  Ed.  175, 
27  Sup.  Ct.  109;  Atlantic  Coast 
Line  R.  Co.  v.  State  ex  rel.  Ellis, 
203  U.  S.  256,  51  L.  Ed.  174,  27 
Sup.  Ct.  108;  New  Mexico  ex  rel. 
E.  J.  IMcLean  &  Co.  v.  Denver  & 
R.  G.  R.  Co.,  203  U.  S.  38,  51  L. 
Ed.  78,  27  Sup.  Ct.  1;  Chicago,  B. 
&  Q.  R.  Co.  V.  People  ex  rel.  Drain- 
age Com'rs.  200  U.  S.  561,  50  L. 
Ed.  596,  26  Sup.  Ct.  341,  4  Ann.  Cas. 
1175;  Northern  Securities  Co.  v. 
United  States,  193  U.  S.  197,  48 
L.  Ed.  679,  24  Sup.  Ct.  436;  Min- 
neapolis &  St.  L.  R.  Co.  V.  Min- 
nesota ex  rel.  Railroad  &  Ware- 
house Commission,  193  U.  S.  53,  48 
L.  Ed.  614,  24  Sup.  Ct.  396;  Min- 
neapolis &  St.  L.  R.  Co.  V.  Min- 
nesota, 186  U.  S.  257,  46  L.  Ed. 
1151,  22  Sup.  Ct.  900;  Wisconsin, 
M.  &  P.  R.  Co.  V.  .Tacobson,  179  U. 
S.  287,  45  L.  Ed.  194,  21  Sup.  Ct. 
115;  Chicago,  M.  &  St.  P.  Ry.  Co. 
V.  Tompkins,  176  U.  S.  167,  44  L. 
Ed.  417,  20  Sup.  Ct.  336;  Smyth  v. 
Ames,  169  U.  S.  466,  42  L.  Ed. 
819,  18  Sup.  Ct.  418;  Chicago,  B. 
&   Q.   R.   Co.    V.   City   of   Chicago, 


166  U.  S.  226,  41  L.  Ed.  979.  17 
Sup.  Ct.  581;  Louisville  & 
N.  R.  Co.  V.  State,  161  U. 
S.  677,  40  L.  Ed.  849,  16  Sup.  Ct. 
714;  Pearsall  v.  Great  Northern 
Ry.  Co.,  161  U.  S.  646,  40  L.  Ed. 
838,  16  Sup.  Ct.  705;  St.  Louis  & 
S.  P.  R.  Co.  v.  Gill,  156  U.  S.  649, 
39  L.  Ed.  567,  15  Sup.  Ct.  484; 
Reagan  v.  Farmers'  Loan  &  Trust 
Co.,  154  U.  S.  362,  38  L.  Ed.  1014, 
14  Sup.  Ct.  1047;  Chicago  &  G.  T. 
Ry.  Co.  V.  Wellman,  143  U.  S.  339, 
36  L.  Sd.  176,  12  Sup.  Ct.  400; 
Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes, 
142  U.  S.  386,  35  L.  Ed.  1051,  12 
Sup.  Ct.  255;  Chicago,  M.  &  St. 
P.  Ry.  Co.  V.  Minnesota,  134  U.  S. 
418,  33  L.  Ed.  970,  10  Sup.  Ct.  462, 
702;  Dow  v.  Beidelman,  125  U.  S. 
680,  31  L.  Ed.  841,  8  Sup.  Ct.  1028; 
Stone  V.  New  Orleans  &  N.  E.  R. 
Co.,  116  U.  S.  352,  29  L.  Ed.  651, 
6  Sup.  Ct.  349,  391;  Stone  v.  Illi- 
nois Cent.  R.  Co.,  116  U.  S.  347, 
29  L.  Ed.  650,  6  Sup.  Ct.  348,  388, 
1191;  Stone  v.  Farmers'  Loan  & 
Trust  Co.,  116  U.  S.  307,  29  L.  Ed. 
636,  6  Sup.  Ct.  334,  388,  1191; 
Illinois  Cent.  R.  Co.  v.  People,  108 
U.  S.  541,  27  L.  Ed.  818,  2  Sup.  Ct. 
839;  Ruggles  v.  People,  108  U.  S. 
526,  27  L.  Ed.  812,  2  Sup.  Ct.  832; 
Stone  v.  Wisconsin,  94  U.  S.  181, 
24  L.  Ed.  102:  Winona  &  St.  P.  R. 
Co.  V.  Blake,  94  U.  S.  180,  24  L.  Ed. 
99;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Ackley,  94  U.  S.  179,  24  L.  Ed.  99; 
Peik  V.  Chicago  &  N.  W.  Ry.  Co., 
94  U.  S.  164,  24  L.  Ed.  97;  Chicago. 
B.  &  Q.  Ry.  Co.  V.  Iowa,  94  U.  S. 
155.  24   L.   Ed.   94. 


§  :V'\]  Sta'ik  AM)  Fkdkhal  Poweks.  71 

jjicronatives  of  tlio  Parliament  of  England.  They  con- 
tinued to  and  do  now  possess  and  enjoy  all  of  these 
same  powers,  except  those  which  have  been  surrendered 
and  delegated  to  the  United  States  through  the  adoption 
of  the  national  Constitution."* 

Under  the  doctrines  of  the  common  law,  whenever 
the  owner  of  private  property  devotes  that  ])roperty 
to  any  use  in  which  the  i)ublic  has  an  interest,  or  clothes 
or  aifects  it  with  a  i)ul)lic  function,  he,  in  effect,  grants 
to  the  state  and  the  public  an  interest  in  that  use  and 
must  submit  to  be  controlled  by  the  state  for  the  com- 
mon good,  to  the  extent  of  the  interest  he  has  thu^ 
created.  Such  is  the  pervading  principle  of  state  con- 
trol early  recognized  by  the  United  States  Supreme 
Court. ^^  It  enables  the  states  to  regulate  the  business 
of  all  concerns  within  their  boundaries  when  their  prop- 
erty is  employed  in  a  manner  which  directly  affects  the 
body  of  the  people.  Common  carriers,  therefore,  from 
the  public  nature  of  their  business  and  the  interest 
which  the  })ublic  lias  in  their  operation,  are  subject, 
as  to  all  their  intrastate  business,  to  regulation  and 
control  by  the  states  exactly  as  interstate  carriers,  as 
to  their  interstate  traffic,  are  subject  to  the  control  of 
Congress.®" 

§  23.  States  May  Regulate  and  Fix  Reasonable 
Rates  for  Intrastate  Transportation.  Although  the 
Interstate  Commerce  Commission,  under  the  Hepburn 
amendment  of  1906,  was  empowered  by  Congress  to 
presci'ibe  maximum  rates  for  interstate  and  foreign 
transportation,  the  states  continued  to  possess  full  and 
complete  authority  to  prescribe  reasonable  rates  for 
exclusively     internal     traffic,     that     is,     transportation 

94r'Munn  v.  People,  94  U.  S.  113.  L.  Ed.  99;  Peik  v.  Chicago  &  N.  W. 

24  L.  Ed.  77.  Ry.   Co.,   94   U.   S.   164.   24   L.    Eil. 

95.    Stone  v.  Wisconsin.  94  U.  S.  97;    Chicago.    B.   &   Q.    Ry.    Co.   v. 

181,  24  L.  Ed.  102;  Winona  &  St.  P.  Iowa,  94  U.  S.  15-5,  24  L.  Ed.  94. 
R.  Co.  V.   Blake,  94  U.   S.   180,  24  96.    See    authorities   under    note 

L.    Ed.   99;    Chicago,    M.   &   St.    P.  93,  supra. 
R.  Co.   V.   Ackley,   94   U   S.   179,   24 


Control  Over  Common  Carriers 


[§  23 


beginning  and  ending  witliin  their  limits.  The  decisions 
of  the  United  States  Supreme  Court  since  the  passage 
of  the  Interstate  Commerce  Act  and  all  its  amendments, 
have  uniformly  recognized  that  it  was  the  exclusive 
province  of  a  state  to  fix  intrastate  rates  applicable 
throughout  its  territory.^'  The  power  of  a  state  to 
prescribe  rates  for  the  transportation  of  passengers  or 
property  within  its  boundaries  is  not  confined  to  a  part 
of  the  state,  but  extends  throughout  the  state,  includ- 
ing its  cities  adjacent  to  its  boundaries  as  well  as  those 
in  the  interior  of  the  state/'^  As  to  interstate  rates, 
the  power  of  Congress  is  exclusive,  and  as  to  intrastate 


97.  Chicago,  M.  &  St.  P.  R.  Co.  v. 
State  Public  Utilities  Commission 
of  Illinois,  242  U.  S.  333,  61  L.  Ed. 
341,  37  Sup.  Ct.  173 J  Louisville  & 
N.  R.  Co.  V.  Garrett,  231  U.  S.  298, 
58  L.  Ed.  229,  34  Sup.  Ct.  48;  Port- 
land Railway,  Light  &  Power  Co.  v. 
Railroad  Commission  of  Oregon, 
229  U.  S.  397,  57  L.  Ed.  1248,  33 
Sup.  Ct.  820;  Northern  Pac.  R.  Co. 
V.  North  Dakota  ex  rel.  McCue,  216 
U.  S.  579,  34  L.  Ed.  624,  30  Sup. 
Ct.  423;  Missouri  Pac.  Ry.  Co.  v. 
Larabee  Flour  Mills  Co.,  211  U.  S. 
612,  53  L.  Ed.  352,  29  Sup.  Ct.  214; 
Alabama  u,  V.  R.  Co.  v.  Missis- 
sippi R.  R.  Commission,  203  U.  S. 
496,  51  L.  Ed.  289,  27  Sup.  Ct:  163; 
IMinneapolis  &  St.  L.  R.  Co.  v.  Min- 
nesota, 186  U.  S.  257,  46  L.  Ed. 
1151,  22  Sup.  Ct.  900;  Louisville  & 
N.  R.  Co.  V.  Com.,  183  U.  S.  503,  46 
L.  Ed.  298,  22  Sup.  Ct.  95;  Smyth 
V.  Ames,  171  U.  S.  361,  43  L.  Ed. 
197,  18  Sup.  Ct.  888;  Smyth  v. 
Ames,  169  U.  S.  466,  42  L.  Ei. 
819,  18  Sup.  Ct.  418;  Interstate 
Commerce  Commission  v.  Cincin- 
nati, N.  0.  &  T.  P.  Ry.  Co.,  167 
U.  S.  479,  42  L.  Ed.  243,  17  Sup.  Ct. 
896;  St.  Louis  &  S.  F.  R.  Ry.  Co. 
V.  Gill,  156  U.  S.  649,  39  L.  Ed. 
567,  15  Sup.  Ct.  484;  Reagan  v. 
Mercantile    Trust    Co.,    154    U.    S. 


418,  38  L.  Ed.  1030,  14  Sup.  Ct. 
1062;  Reagan  v.  Farmers'  Loan 
&  Trust  Co.,  154  U.  S.  362,  38  L. 
Ed.  1014,  14  Sup.  Ct.  1047;  Chicago, 
M.  &  St.  P.  Ry.  Co.  V.  Minnesota, 
134  U.  S.  418,  33  L.  Ed.  970,  10  Sup. 
Ct.  462,  702;  Dow  v.  Beidelman, 
125  U.  S.  680,  31  L.  Ed.  841,  8  Sup. 
Ct.  1028;  \Vabash,  St.  L.  &  P.  Ry. 
Co.  V.  People,  118  U.  S.  557,  7  Sup. 
Ct.  4,  30  L.  Ed.  244;  Stone  v. 
Farmers'  Loan  &  Trust  Co.,  116 
U.  S.  307,  29  L.  Ed.  636,  6  Sup.  Ct. 
334,  388,  1191;  Stone  v.  Illinois 
Cent.  R.  Co.,  116  U.  S.  347,  29  L. 
Ed.  650,  6  Sup.  Ct.  348,  388,  1191; 
Stone  V.  Wisconsin,  94  U.  S.  181, 
24  L.  Ed.  102;  Chicago,  M.  &  St. 
P.  R.  Co.  V.  Ackley,  94  U.  S.  179, 
24  L.  Ed.  99;  Chicago,  B.  &  Q.  Ry. 
Co.  V.  Iowa,  94  U.  S.  155,  24  L.  Ed. 
94. 

Interstate  carriers  may  be  com- 
pelled to  establish  intrastate  com- 
mutation fares  less  than  the  legal- 
ly established  standard  or  normal 
one-way  single  passenger  fares. 
Pennsylvania    R.    Co.    v.    Towers, 

245  U.  S.  6,  6?  L.  Ed.  ,  S8  Sup. 

Ct.  2. 

98.  Simpson  v.  Shepard,  230  U. 
S.  352,  48  L.  R.  A.  (N.  S.)  1151, 
Ann.  Cas.  1916A  18,  57  L.  Ed.  1511, 
33  Sup.  Ct.  729. 


§  2:5  1 


Statk  and  FKi)i:i{Ar>  Powers. 


73 


rates,  tlie  i)ower  of  tlio  stales  is  cxelusiNc.  Willi  in 
their  respective  domains,  each  lias  full  and  complete 
authority,  the  only  limitation  on  the  power  of  the  state 
is  that  the  rates  fixed  for  intrastate  transportation  must 
not  deprive  the  carrier  of  just  compensation  for  llic 
services  rendered,"'-*  and  an  intrastate  i-ate  must  not 
result  in  unjust  discrimination  against  an  interstate 
rate  arisini>-  out  of  tlie  close  and  intimate  relationship 
of  the  two  rates. ^ 

The  limitation  upon  national  power  over  intra- 
state rates  was  recognized  by  Congress  in  the  passage 
of  the  Interstate  Commerce  Act  and  its  amendments 
by  the  proviso  to  Section  1  which  declares  that  the 
Interstate  Commerce  Act  shall  not  apply  to  the  trans- 
portation of  passengers  or  property,  or  to  the  receiving, 
delivering,  storage,  or  handling  of  property  wholly 
within  one  state  and  not  shipped  to  or  from  a  foreign 
country  from  or  to  any  state  or  territory,  or  to  the 
transmission  of  messages  by  telephone,  telegrapli,  or 
cable  wholly  within  one  state  and  not  transmitted  to 
or  from   a    foreign   country   from    or   to    anv   state    or 


99.  Louisville  &  N.  H.  Co.  v. 
Garrett,  231  U.  S.  298,  58  L.  Ed. 
229,  34  Sup.  Ct.  48;  Chesapeake  & 
0.  R.  Co.  V.  Conley,  230  U.  S.  5i:;. 
57  L.  Ed.  1597,  33  Sup.  Ct.  985; 
Knott  V.  Chicago,  B.  &  Q.  R.  Co., 
230  U.  S.  474.  57  L.  Ed.  1571.  33 
Sup.  Ct.  975;  Simpson  v.  Shepard. 
230  U.  S.  35£,  57  L.  Ed.  1511,  33 
Sup.  Ct.  729,  48  L.  R.  A.  (N.  S.) 
1151,  Ann.  Cas.  191GA  18;  Willcox 
V.  Consolidated  Gas  Co.,  212  U.  S 
19,  53  L.  Ed.  382,  29  Sup.  Ct.  192, 
48  L.  R.  A.  (N.  S.)  1134,  15  Ann. 
Cas.  1034;  Knoxville  v.  Knoxville 
Water  Co.,  212  U.  S.  1,  53  U  Ed. 
371.  29  Sup.  Ct.  148;  Cotting  v. 
Godard,  183  U.  S.  79.  46  L.  Ed.  92. 
22  Sup.  Ct.  30;  San  Diego  Land  & 
Town  Co.  V.  .Jasper,  189  U.  S.  43'.t. 
47  L.  Ed.  892.  23  Sui,.  Ct.  571; 
Smyth  V.  Ames.  169  U.  S.  4G6.  42 


L.  Ed.  819,  ^8  Sup.  Ct.  418;  St. 
Louis  &  S.  F.  R.  Co.  V.  Gill.  156  U. 
S.  649,  39  L.  Ed.  567,  15  Sup.  Ct. 
484;  Reagan  v.  Mercantile  Trust 
Co.,  154  U.  S.  418,  38  L.  Ed.  1030, 
14  Sup.  Ct.  1062;  Reagan  v.  Farm- 
ers' Loan  &  Trust  Co.,  154  U.  S. 
362,  38  L.  Ed.  1014,  14  Sup.  Ct. 
1047;  Chicago  &  G.  T.  Ry.  Co.  v. 
Wellman.  143  U.  S.  339,  36  L.  Ed. 
176.  12  Sup.  Ct.  400;  Chicago,  M. 
&  St.  P.  Ry.  Co.  V.  Minnesota,  134 
U.  S.  418,  33  L.  Ed.  970.  10  Sup. 
Ct.  462.  702:  Stone  v.  Farmers' 
Loan  &  Trust  Co..  116  U.  S.  307. 
29  L.  Ed.  336.  6  Sup.  Ct.  334,  388, 
1191. 

1.  Houston  E.  &  W.  T.  R.  Co.  v. 
United  States,  234  U.  S.  342,  58 
L.  Ed.  1341,  34  Sup.  Ct.  833;  Ore- 
gon R.  &.  Nav.  Co.  V.  Campbell.  230 
V.  S.  525,  57  L.  Ed.  1004,  33  Sup. 
Ct.   1026. 


74  Control  Over  Common  Carriers  [^  23 

territory.  "The  question  we  liave  now  before  ns," 
said  ]\rr.  Justice  Hughes  in  the  Minnesota  Rate  eases" 
"essentially,  is  whether  after  the  passage  of  the  Inter- 
state Commerce  Act,  and  its  amendment,  the  State 
continued  to  possess  the  state-wide  authority  which 
it  formerly  enjoyed  to  prescribe  reasonable  rates  for 
its  exclusiye  internal  traffic.  That,  as  it  plainly  appears, 
was  the  nature  of  the  action  taken  by  Minnesota,  and 
llie  attack,  howeyer  phrased,  upon  the  rates  liere  in- 
yolyed  as  an  interference  with  interstate  commerce, 
is  in  substance  a  denial  of  that  authority.  Having 
regard  to  the  terms  of  the  Federal  statute,  the  familiar 
range  of  state  action  at  the  time  it  was  enacted,  the 
continued  exercise  of  state  authority  in  the  same  man- 
ner and  to  the  same  extent  after  its  enactment,  and  the 
decisions  of  this  court  recognizing  and  upholding  this 
autliority,  we  find  no  foundation  for  the  pro])osition 
that  the  Act  to  Regulate  Commerce  contemplated  inter- 
ference thei-ewith.  Congress  did  not  undertake  to  say 
that  the  intrastate  rates  of  interstate  carriers  should 
be  reasonable  or  to  invest  its  administrative  agency 
with  authority  to  determine  their  reasonableness.  Neither 
by  the  original  act  nor  by  its  amendment,  did  Con- 
gress seek  to  establish  a  unified  control  over  inter- 
state and  intrastate  rates;  it  did  not  set  up  a  standard 
for  intrastate  rates,  or  ])rescribe,  or  authorize  the  Com- 
mission to  ]irescribe,  either  maximum  or  minimum  rates 
for  intrastate  traffic.  It  cannot  be  supposed  that  (/on- 
gress  sought  to  accomplish  by  indirection  that  which 
it  expressly  disclaimed,  or  atteinpted  to  override  the 
accustomed  authority  of  the  States  without  the  provi- 
sion of  a  substitute.  On  the  contrary,  the  fixing  of 
reasonable  rates  for  intrastate  transportatioji  was  left 
where  it  had  been  found;  that  is,  with  the  States  and 
the  agencies  created  by  the  States  to  deal  with  that 
subject.  Missouri  Pacific  Ry.  Co.  v.  Larabee  Mills, 
211  U.  S.  612,  620,  621." 

2.  230  U.  S.  352,  57  I..  Ed.  1511,   S.)  1151,  Ann.  Cas.  1916A  18. 
33  Sup.  Ct.  729,  48  I..  R.  A.  (N. 


§  24]  S'lATK  A\i)  F'ederal  Powers.  75 

§  24.  Statutes  of  States  Regulating  Delivery  of 
Cars  for  Interstate  Shipment  Inoperative.  Since  the 
enactment  of  the  Hepburn  amendment  of  1906  to  the 
Interstate  Commerce  Act,  state  laws  regulating  the 
furnisliing  and  deliveiy  of  cars  for  interstate  ship- 
ments, are  inoperative.^  Tliis  amendment  specifically 
defines  "transportation"  under  federal  control  as  in- 
cluding cars  and  other  vehicles  for  interstate  move- 
ments, and  declares  it  to  be  the  duty  of  the  carrier  to 
furnish  such  cars  upon  reasonable  request.  Obviously, 
therefore,  the  subject-matter  of  furnishing  cars  for 
interstate  shipments  is  fully  covered  by  the  national 
statute.  Applying  this  principle,  the  Supreme  Court 
held  that  a  Minnesota  reciprocal  demurrage  act  which 
required  railroads  to  furnish  cars  upon  request,  within 
seventy-two  hours  at  stations  on  a  line  and  within 
forty-eight  hours  at  terminal  points,  was  inapplicable 
to  interstate  shipments.* 

A  statute  of  the  state  of  North  Carolina  required 
common  carriers  to  forward  freight  by  routes  selected  by 
the  shipper  under  penalty  of  forfeiting  fifty  dollars  a  day 
to  the  shipper  for  each  day  of  refusal  to  receive  such 
freight  and  all  damages  actually  sustained.  The  Su- 
preme Court  held  that  the  statute  was  inoperative  as 
to  all  interstate  shipments  for  the  reason  that  Con- 
gress, by  the  passage  of  the  Interstate  Commerce  Act, 
had   taken  possession  of  and  had  legislated  upon  the 

3.     Illinois  Cent.  R.  Co.  v.  I^ouis-  v.  Wright,  225  U.  S.  540,  5G  L.  Ed. 

iana  R.  R.  Commission,  236  U.  S.  1197,    32    Sup.    Ct.    784;     Railroad 

157,  59  L.  Ed.  517,  35  Sup.  Ct.  275;  Commission  of  Ohio  v.  Worthing- 

St.    Louis,    I.    M.    &   S.    R.    Co.    v.  ^oq  £25  U.  S.  101,  56  L.  Ed.  1004,  32 

Edwards,  227  U.  S.  265,  57  L.  Ed.  g^p    ^^    553.    Southern   R.   Co.  v. 

506,  33  Sup.  Ct.  262;   Yazoo  &  M.  j^^.^_  222  U.  S.  424,  56  L.  Ed.  257. 
V.   R.   Co.   V.   Greenwood   Grocery 

Co..  227  U.  S.  1.  57  L.  Ed.  389.  3S  ^^  Sup.  Ct.  140. 
Sup.  Ct.  213;  Chicago.  R.  I.  &  P.  R 


4.    Chicago.  R.  I.  &  P.  R.  Co. 


Co.  V.  Hardwick  Farmers  Elevator  Hardwick  Farmers'   Elevator  Co 

Co..   226  U.   S.   426.   57  L.  Ed.   284.  226   U.   S.    426.   57   L.    Ed.    284.   33 

33  Sup.  Ct.   174.  46  L.  R.   A.   (    N.  Sup.  Ct.   174.   46   L.  R.   A.    (N.   S.) 

S.)   203;   Standard  Stock   Food  Co.  203. 


76 


Control  Ovek  Common  Caerieks 


[§  24 


same  subject-matter.^    An  Arkansas  statute  prescribing 


5.  Southern  R.  Co.  v.  Reid,  222 
U.  S.  424,  56  L.  Ed.  257,  32  Sup. 
Ct.  140.  Said  the  Court:  "The 
particular  act  which  was  held  to 
violate  the  statute  was  refusiL.g 
the  tender  of  goods  for  shipment 
from  Charlotte,  North  Carolina,  to 
Davis,  West  Virginia,  that  is,  a 
tender  for  interstate  shipment, 
and  a  demand  coincidentally  for 
a  bill  of  lading  covering  the  ship- 
ment explicitly  stating  the  origin 
of  the  shipment  at  Charlotte  and 
its  destination  at  Davis.  The  Su- 
preme Court  of  the  State  decided, 
as  we  have  seen,  that  the  statute 
deals  with  a  common  law  duty 
simply,  one  which  attaches  before 
freight  enters  into  interstate  com- 
merce, and  hence  concluded  as  fol- 
lows: 'The  statutory  enforcement 
under  penalty  of  the  common  law 
duty  to  accept  freight  'whenever 
tendered'  is  not  within  the  scope 
or  terms  of  any  act  of  Congress. 
It  is  neither  an  interference  with 
nor  a  burden  upon  interstate  com- 
merce.' We  are  unable  to  agree 
with  the  conclusion.  It  would  de- 
stroy absolutely  Federal  control 
until  the  freight  was  in  the  posses- 
sion of  the  carrier,  and  is  direct- 
ly contradictory  of  the  provision 
of  the  Interstate  Commerce  Act 
which  we  have  quoted.  See,  in 
this  connection,  Houston  &  Texas 
Cent.  R.  R.  Co.  v.  Mayes.  201  U. 
S.  321.  In  the  term  'transporta- 
tion,' we  nave  seen,  Congress  has 
included  'all  services  in  connec- 
tion with  the  receipt  ...  of 
property  transported.'  And  this 
certainly  imposes  the  obligation  to 
receive  the  property  as  well  as  to 
carry  it,  one  of  the  obligations  the 
carrier  must  perform  'upon  rea- 
sonable reiuest  therefor.'  Other 
provisions  of  the  same  import  and 
direction    might   be   qucted.     Con- 


ditions put  on  the  receipt  of  arti- 
cles at  the  railroad  station  may 
be  conditions  upon  the  traffic,  and 
necessarily  are  within  the  regu- 
lating power  of  Congress.  Their 
inducement  and  aim  may  be  to 
secure  a  prompter  performance  of 
duty  by  the  carrier,  and  so  far  ben- 
eficient.  But  that  is  not  the  ques- 
tion. The  question  is,  where  is 
the  control,  in  the  State  or  Con- 
gress, and  has  Congress  acted? 
That  the  control  is  in  Congress 
we  have  seen;  that  it  has  acted 
is  demonstrated  by  the  provisions 
of  the  Interstate  Commerce  Act 
to  which  we  have  referred.  As  we 
have  seen,  schedules  of  rates, 
whether  the  road  be  single  or 
forms  with  another  a  'through 
route,'  must  be  established,  filed 
and  published,  designating  the 
places.  They  cannot  be  changed 
without  permission  of  the  Inter- 
state Commerce  Commission,  and 
no  carrier  is  permitted  to  engage 
or  participate  in  the  transporta- 
tion of  passengers  or  property  un- 
less the  rates  for  the  same  have 
been  so  filed  and  published.  Crim- 
inal punishments  are  imposed  for 
violations  of  these  requirements, 
and  civil  redress  of  injuries  re- 
ceived by  shippers  is  given  through 
the  Interstate  Commerce  Commis- 
sion. See  Robinson  v.  B.  &  O.  R. 
R.  Co.  (appears  in  next  number). 
By  these  provisions  Congress  has 
taken  possession  of  the  field  of 
regulation,  with  the  purpose, 
which  we  have  already  pointed  out. 
to  keep  under  the  eye  and  control 
of  the  Commission  the  rates 
charged  and  the  action  of  the  rail- 
road in  regard  to  them,  to  secure 
their  reasonableness  and  to  secure 
their  impartial  application.  The 
statute  of  North  Carolina  conflicts 
with    these    requirements.      What 


§    24]  S'lAli;     AND     h'KDEIUI.     I'oWKRS.  77 

that  a  carrier  sliould  ])ay  a  jx'r  diem  })('iialty  to  a  shipper 
for  a  failure  to  notify  a  eonsiguoe  of  tiie  arrival  of  a 
shipment  at  destination,  was  held  to  be  invalid  as  to 
interstate  shiimients  for  the  reason  that  Congress  by 
the  enactment  of  tlie  Plei)l)urn  Act  liad  legislated  ui)on 
the  same  subject  matter,  the  term  '* transportation" 
in  the  federal  act  covering  all  services  in  connection 
with  the  do]i\-ery  of  proiterty  transported.'"' 

§  25.  States  may  Compel  Switch  Connections  with 
Private  Side  Tracks  for  Intrastate  Business.  The  juris- 
diction conferred  upon  the  Interstate  Commerce  Com- 
mission by  the  Hepburn  Act  of  1906  as  amended  in 
1910/  to  compel  a  switch  connection  between  the  line 
of  an  interstate  railroad  and  a  private  siding  of  a  ship- 
per or  a  lateral  branch  line  of  railroad  under  the 
conditions  therein  prescribed,  applies  exclusively  to 
shippers  tendering  interstate  traffic  for  transportation. 
The  authority  so  given  the  national  Commission  could 
not  and  does  not  defeat  the  jurisdiction  of  a  state  to 
compel  such  switch  connections,  when  the  traffic  ten- 
dered is  of  an  intrastate  character.  Under  the  limited 
power  granted  by  the  commerce  clause  of  the  Consti- 
tution, Congress  possesses  no  authority  to  legislate  or 
to  regulate'  the  transportation  and  movement  of  intra- 
state traffic. 

The  power  of  the  states  to  require  facilities  for  the 
movement  of  intrastate  freight  is  as  broad  and  as 
exclusive  as  the  national  jurisdiction  over  interstate 
facilities.  A  state  commission  may,  therefore,  compel 
even  an  interstate  carrier  to  make  a  switch  connection 
with  a  private  track  or  an  industrial  plant  when  reason- 
ably necessary  for  the  purpose  of  transporting  freight 
to  other  points  in  the  same  state. ^     In  the  case  cited, 

they   forbid  the  carrier  to  do  the  Grocery   Co.,   227   U.   S.    1       57   L. 

statute    requires    him    to    do,    and  Ed.  389,  33  Sup.  Ct.  213. 

punishes    disobedience    by    succes-  7.      Section    70,   infra, 

sive  daily  penalties."  8.     Chicago,  R.  I.  &  P.  Ry.  Co. 

6.     St.  Louis  I.  M.  &  S.  Ry.  Co.       v.  State,  Okla.  ,  157  Pac. 

V.  Edwards,  227  U.   S.  265,  57  L.  1039.    But  carriers  cannot  be  com- 

Ed.  506,  33  Sup.  Ct.  262.    See  also  pelled  to  construct  spur  tracks  to 

Yazoo  &  ]\T.  V.  R.  Co.  v.  Greenwood  private  industries  at  their  own  ex- 


78  CoNTEOL   Over   Common   Gareiers  [§  25 

the  court  sustained  an  order  of  the  Corporation  Com- 
mission,  and   said:   ''The   evidence   justified   the   Com- 
mission in  finding  that  there  was  sufficient  business  of 
an  intrastate  character  to  require  the  construction  of 
such   side  track  by  the  plaintiff,   and   the  jurisdiction 
of  the  Corporation  Commission  to  require  switch  con- 
nections to  be  made  is  not   affected  by   the  fact  that 
a    portion    of    the    business   tendered    to    the    railroad 
company  would  be  of  an  interstate  nature.    If  such  were 
the  case,  the  state  authorities  would  be  without  juris- 
diction in  any  matter  where  interstate  commerce  might 
incidentally    be    affected,    and    the    Commission    would 
be  without  authority  to  require  the  erection  of  a  depot, 
freight  house,  or   a   platform,  or   to   require   a   switch 
connection  with  a  private  side  track  or  spur,  or  to  re- 
quire rates  and  charges  for  purely  intrastate  matters. 
The  cases  in  this  court  sustaining  orders  of  this  char- 
acter are  too  numerous  to  cite.     In  fact,  it  is  hardly 
possible  to  conceive  of  any  order  which  might  be  made 
by  the  Commission   affecting   a  railroad  operating   an 
interstate  line  of  railroad  in  which  interstate  commerce 
would  not  in  some  way  be  affected.'" 

§  26.  State  Statutes  Prescribing  Rates  Specified  in 
Bill  of  Lading  Void  as  to  Interstate  but  Valid  as  to  In- 
trastate Shipments.  Before  the  exercise  of  federal  con- 
trol over  rates  and  fares  for  interstate  transportation, 
state  laws  prescribing  that  a  rate  or  charge  specified 

pense.      Missouri    Pac.    R.    Co.    v.  Mich.  230,   144   N.  W.   69G;     State 

Nebraska,  217  U.  S.  196,  54  L.  Ed.  v.  Chicago,  M.  &  St.  P.  R.  Co.,  115 

727,  30  Sup.  Ct.  461,  18  Ann.  Cas.  Minn.  51,  131   N.   W.  859;    Cox  v. 

989;    Missouri  Pac.  R.  Co.  v.  State,  Pennsylvania   R.   Co.,   240   Pa.   27, 

164   U.   S.   403,   41  L.   Ed.   489,   17  gy  Atl.  581;    State  v.  Southern  R. 

Sup.  Ct.  130;    Mclnnis  v.  New  Or-  q^^   153   ^    C.   559,  69   S.   E.   621; 

leans  &  N.  E.  R.  Co.,  109  Miss.  482,  g^^^^  ^^  ^^^    Chicago,  M.  &  P.  S. 

L.  R.  A.  1915E  682,  68  So.  481;   St.  ^    ^^    ^    Public  Service  Commis- 

Louis  &  S.  F.  R.  Co.  V.  Zalondek,  ^.^^     ^^    ^^^^     529,    Ann.    Cas. 

28    Okla.    746.    115    Pac.    867;     St^  ^^^^^            ^^^  ^^^    ^^^^.    ^nion 

Louis  &  S.  F.  R.  Co.  V.  State,  27  Commission 

Okla.  424,  112  Pac.  980.  uune^u.            _,....       ^.„     .„q 

9.    See  also  Michigan  R.  R.  Com-  of   Wisconsin,    144    Wis.    523,    129 

mission  v.  Detroit  &  M.  R.  Co.,  178  N.  W.  605. 


§  27]  SiATK  AM)   Fedkkal   Powers  79 

in  a  hill  of  ladin^^  issued  hy  a  ('arri(?r  was  l)iiidiii^^  n])Oii 
it,  were  valid  and  eiit'oiceabie  aithou^ii  the  shipment 
thereunder  was  interstate  in  character.  But  the  Inter- 
state Commerce  Act,  under  tlie  ])rovisions  of  Section  6, 
makes  a  rate  or  charge  publislied  and  filed  with  tlie 
(  ommission  conclusive  ui)on  all  parties,  and  as  binding 
as  if  fixed  l)y  statute.  If  a  difference  or  a  discrepancy 
exists  between  llie  published  rate  and  that  specified  in 
the  bill  of  lading,  the  former  controls.  As  the  congres- 
sional law,  therefore,  deals  with  and  regulates  the  same 
subject  matter,  the  state  law  must  give  way  and  be- 
comes inoperative  as  to  all  shipments  under  federal 
control.''^  The  efficacy  of  the  state  law,  however,  over 
all  intrastate  shipments,  is  not  affected  by  the  substi- 
luied  rule  in  interstate  commerce  transactions. 

§  27.  State  Laws  and  Decisions  Governing  Lia- 
bility for  Loss  and  Damage  to  Property  Superseded 
by  Carmack  Amendment.  Trior  to  the  passage  of  the 
Carmack  amendment  to  the  Act  to  Regulate  Commerce 
making  the  initial  carrier  accepting  i)ro]Kn-ty  for  ship- 
ment liable  for  any  loss  and  damage  thereto  on  the 
line  of  a  connecting  carrier,  liability  for  loss  and  damage 
to  property  on  interstate  as  well  as  intrastate  shipments 
was  subject  to  state  regulations.  Some  states  permitted 
an  exemi^tion  by  contract  from  a  part  of  the  carrier's 
common  law  liability;  others  allowed  no  exception. 
These  differences  in  the  a]iplicable  laws  created  in- 
(Miualities  and  a  constant  diversity  of  legislation  and 
judicial  rulings  with  res])ect  to  interstate  transporta- 
tion.''     But  each   stale,  as  it   had  the  right   to  do,  exer- 

10.  Gulf.  C.  &  S.  F.  Ry.  Co.  V.  "  'Some  states  allowed  carriers  to 
Hefiey,  158  U.  S.  98,  39  L.  Ed.  exempt  themselves  from  all  or  a 
910,  15  Sup.  Ct.  802;  Yorke  Fur-  part  of  the  common  law  liability, 
niture  Co.  v.  Southern  R.  Co.,  162  by  rule,  regulation  or  contract: 
N.  C.  138,  78  S.  E.  67.  others  did  not:    the  Federal  courts 

11.  The  situation  prior  to  the  sitting  in  the  various  states  were 
enactment  of  the  Carmack  amend-  following  the  local  rule,  a  carrier 
ment  was  well  described  in  South-  being  held  liable  in  one  court  when 
ern  Pac.  Co.  v.  Crenshaw,  5  Ga.  under  the  same  state  of  facts  he 
App    675.  63  S.  E.  865,  as  follows:  would  be  exempt  from  liability  In 

79 


80 


Control   Over   Common    Carriers 


[§  27 


cised  the  power  inherent  in  its  territorial  jurisdiction 
in  the  absence  of  a  regulation  by  Congress.  In  the 
passage  of  the  Carmack  amendment,  Congress  plainly 
manifested  its  intention  to  exercise  its  conceded  control 
over  the  subject  matter  of  all  loss  and  damage  to  inter- 
state shipments.  x\ll  state  laws  and  regulations,  and 
the  rulings  of  state  courts,  were  thereby  annulled  and 
superseded  as  to  all  shipments  from  one  state  to 
another. ^^ 


another;  hence  this  branch  of  in- 
terstate commerce  was  being  sub- 
jected to  such  a  diversity  of  leg- 
islative and  judicial  holding  that 
it  was  practically  impossible  for  a 
shipper  engaged  in  a  business  that 
extended  beyond  the  confines  of 
his  own  state,  or  for  a  carrier 
whose  lines  were  extensive,  •  to 
know  without  considerable  inves- 
tigation and  trouble,  and  even  then 
oftentimes  with  but  little  certain- 
ty, what  would  be  the  carrier's  ac- 
tual responsibility  as  to  goods  de- 
livered to  it  for  transportation 
from  one  state  to  another.  The 
Congressional  action  has  made  an 
end  to  this  diversity;  for  the  na- 
tional law  is  paramount  and  super- 
sedes all  State  laws  as  to  the  rights 
anc'  liabilities  and  exemptions  cre- 
ated by  such  transaction.  This 
was  doubtless  the  purpose  of  the 
law;  and  this  purpose  will  be 
effectual,  and  not  impaired  or  de- 
stroyed, by  the  State  court's  obey- 
ing and  enforcing  the  provisions 
of  the  Federal  statute  where  ap- 
plicable to  the  fact  in  such  cases 
as  shall  come  before  them.'  That 
the  legislation  supersedes  all  the 
regulations  and  policies  of  a  par 
ticular  State  upon  the  same  sub- 
ject results  from  its  general  char- 
acter. It  embraces  the  subject  of 
the  liability  of  the  carrier  under 
a  bill  of  lading  which  he  must  is- 


sue and  limits  his  power  to  exempt 
himself  by  rule,  regulation  or  con- 
tract. Almost  every  detail  of  the 
subject  is  covered  so  completely 
that  there  can  be  no  rational  doubt 
but  that  Congress  intended  to  take 
possession  of  the  subject  and  su- 
persede all  State  regulation  with 
reference  to  it.  Only  the  silence 
of  Congress  authorized  the  exercise 
of  the  police  power  of  the  State 
upon  the  subject  of  such  contracts. 
But  when  Congress  acted  in  such  a 
way  as  to  manifest  a  purpose  to 
exercise  its  conceded  authority,  the 
regulating  power  of  the  State 
ceased  to  exist.  (Northern  Pacific 
Ry.  V.  State  of  Washington,  222 
U.  S.  370;  Southern  Railway  v. 
Reid,  222  U.  S.  424;  Mondou  v. 
Railroad,   3    U.    S.   l.)" 

12.  United  States.  New  York,  P. 
&.  N.  R.  Co.  V.  Peninsula  Produce 
Exch.  of  Maryland,  240  U.  S.  34, 
60  L.  Ed.  511,  36  Sup.  Ct.  230,  L. 
R.  A.  1917A  193;  Charleston  &  W. 
C.  R.  Co.  V.  Varnville  Furniture 
Co.,  237  U.  S.  597.  59  L.  Ed.  1137, 
35  Sup.  Ct.  715,  Ann.  Cas.  1916D 
333;  Pierce  Co.  v.  Wells,  Fargo  & 
Co.,  236  U.  S.  278,  59  L.  Ed.  576, 
35  Sup.  Ct.  351;  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Robinson.  233  U.  S. 
173.  58  L.  Ed.  901,  34  Sup.  Ct.  556; 
Chicago,  R.  I.  &  P.  R.  Co.  v. 
Cramer,  232  U.  S.  490.  58  U  Ed. 
697.   34    Sun.   Ct.   383;      Norfolk   & 


§  i^HJ 


S'lA'l  K    AM)     I^'j;|)KI;AL     I'OWEHS 


81 


§  28.  State  Statute  Authorizing-  Issuance  of  Trans- 
portation in  Payment  for  Advertising  Invalid.  A 
statute    of   the    state    authorizing    a    doniestie    eorpora- 


W.  K.  Co.  V.  Dixie  Tobacco  Co.. 
228  U.  S.  593,  57  L.  Ed.  980,  33  Sup. 
Ct.  f)09;  Missouri  K.  &  T.  R.  Co. 
V.  Harriman,  227  U.  S.  657,  57  L. 
Ed.  690,  Sn  Sup.  Ct.  397;  Kansas 
City  Southern  R.  Co.  v.  Carl,  227 
U.  S.  639,  57  L.  Ed.  G83,  33  Sup. 
Ct.  391;  Adams  Elxp.  Co.  v.  Cron- 
inger,  226  U.  S.  491,  57  L.  Ed.  314, 
33  Sup.  Ct.  148,  44  L.  R.  A.  (N. 
S.)    257;     Chicago,    St.    P.,    M.    & 

0.  R.  Co.  V.  Latta,  226  U.  S.  519, 
57  L.  Ed.  328,  33  Sup.  Ct.  155;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Miner,  226 
U.  S.  513,  57  L.  Ed.  323,  33  Sup. 
Ct.  155;  Galveston,  H.  &  S.  A.  R. 
Co.  V.  Wallace,  223  U.  S.  481,  56 
L.  Ed.  516,  32  Sup.  Ct.  205;  At- 
lantic Coast  Line  R.  Co.  v.  River- 
side Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31  Sup.  Ct.  164,  31  L.  R.  A. 
(N.  S.)  7:  Hudson  v.  Chicago,  St. 
P..  M.  &  0.  Ry.  Co.,  226  Fed.  38. 

Arkansa3,  Kansas  City  &  M.  R. 
Co.  V.  Oakley,  115  Ark.  20,  170  S. 
W.  565. 

Florida.  Hall  v.  Florida  East 
Coast  R.  Co.,  65  Fla.  Ill,  61  So. 
197;  Fornel  v.  Florida  East  Coast 
R.  Co.,  65  Fla.  102,  61  So.  194. 

Georgia.  Atlantic  Coast  Line  R. 
Co.  V.  Thomasville  Live  Stock  Co.. 
13  Ga.  App.  102,  78  S.  E.  1019. 

Illinois.  Gamble-Robinson  Com- 
mission Co.  V.  Union  Pac.  R. 
Co.,  262  111.  400,  Ann.  Cas.  1915B 
89.  104  N.  E.  666. 

Iowa.     McMillan  v.  Chicago,  R. 

1.  &  P.  R.  Co..  147  Iowa.  596,  124 
N.  W.  1096. 

Kentucky.  Armstrong  v.  Illinois 
Cent.  R.  Co..  162  Ky.  539,  172  S. 
W.  947:  Adams  Exp.  Co.  v.  Cook, 
162  Ky.  592,  172   S.  W.   1096. 


Minnesota.  Ford  v.  Chicago,  H. 
1.  &  P.  R.  Co.,  123  Minn.  87,  143 
N.  W.  249. 

Mississippi.  Southern  R.  Co.  v. 
North  State  Cotton  Co.,  107  Miss. 
71,  64  So.  965;  St.  Louis  &  S.  F. 
P.  Co.  V.  Woodruff  Mills,  105  Miss. 
214,  62  So.  171. 

Missouri.  Donavan  v.  Wells, 
Fargo  &  Co.,  265  Mo.  291,  177  S. 
W.  839;  Thomas  Bros.  v.  St.  Louis 
&  S.  F.  R.  Co.,  188  Mo.  App.  22, 
173  S.  W.  96;  Dunlap  v.  Chicago 
&  A.  R.  Co.,  187  Mo.  App.  201,  172 
S.  W.  1178;  Morrison  Grain  Co.  v. 
Missouri  Pac.  R.  Co.,  182  Mo.  App. 
339,  170  S.  W.  404;  McElvain  v. 
St.  Louis  &  S.  F.  R.  Co..  176  Mo. 
App.  379,  158  S.  W.  464. 

New  Jersey.  Spada  v.  Pennsyl- 
vania R.  Co.,  86  N.  .1.  L.  187,  92 
Atl.  379. 

New  York.  Lynch  v.  New  York 
Cent.  &  H.  River  R.  Co.,  89  N.  Y. 
Misc.  472,  153  N.  Y.  Supp.  633. 

North  Carolina.  Morphis  v. 
Southern  Exp.  Co.,  167  N.  C.  139, 
S3  S.  E.  1;  McConnell  v.  New  York 
Cent.  &  H.  River  R.  Co.,  163  N.  C. 
504,  79  S.  E.  974;  Herring  v.  At- 
lantic Coast  Line  R.  Co.,  160  N. 
C.  252,  76  S.  E.  527:  Pace  Mule 
Co.  V.  Seaboard  Air  Line  R.  Co.. 
160  N.  C.  215.  76  S.  E.  513. 

Oklahomii.  Ft.  Smith  &  W.  R. 
Co.  V.  Awbrey  &  Semple,  39  Okla. 
270.  134  Pac.  1117;  Missouri.  K. 
&  T.  R.  Co.  V.  Walston,  37  Okla. 
517,  13.1  Pac.  42. 

South  Carolina.  St  tikes  v.  South- 
ern Exp.  Co.,  96  S.  C.  383,  80  S.  E. 
612. 

Washington.  Coovert  v.  Spo- 
kane. P.  &  S.  H.  Co..  Rf  Wa.^h.  ST. 
141   Pac.  324. 


1    Control    r.-irriors   0 


82  CdNTKOT.   ()v?:rt    Common    Carriers  [§  27 

tion  engaged  as  a  common  carrier  to  issue  transporta- 
tion in  payment  for  printing  and  advertising  is  invalid 
as  to  all  interstate  Iransportalion  for  the  reason  that 
Congress  has  assumed  jurisdiction  of  the  same  sub- 
ject matter  by  the  enactment  of  the  Interstate  Commerce 
Act  and  the  amendments  of  11)06.  Such  a  statute  is 
invalid  even  as  to  that  portion  of  an  interstate  journey 
which  is  within  the  bounds  of  a  single  state."  "No  state 
enactment  can  be  of  any  avail  when  the  subject  of  such 
transactions  has  been  covered  by  an  act  of  Congress 
acting  within  the  limits  of  its  constitutional  powers. 
Tt  has  long  been  settled  that  when  an  'act  of  the  legis- 
lature of  a  State  prescribes  a  regulation  of  the  subject 
repugnant  to  and  inconsistent  with  the  regulation 
of  Congress,  the  state  law  must  give  way,  and  this 
without  regard  to  the  source  of  power  whence  the  state 
legislature  derived  its  enactment.'  Sinnot  v.  Davenport, 
22  How.  227,  243;  M.,  K.  &  T.  Railway  v.  Haber,  169 
U.  S.  6ia,  686;  Reid  v.  Colorado,  187  U.  S.  137.  This 
results.  Chief  Justice  Marshall  said  in  Gibbons  v.  Ogden, 
9  Wheat.  1,  as  well  from  the  nature  of  the  Government 
as  from  the  words  of  the  Constitution."'* 

§  29.  States  May  Require  Operation  of  Trains 
Between  Intrastate  Points  on  Interstate  Lines — Limita- 
tions and  Exceptions.  Neither  the  commerce  clause  nor 
h'gishitioii  by  Congress  thereunder  precludes  a  state 
from  requiring  interstate  carriers  to  afford  adequate 
passenger  train  service  between  points  within  its  bound- 
aries.^' For  railroads,  from  the  ])ublic  nature  of  the 
business  carried  on  by  them,  and  Ihc  int(>rest  Avhich 
llic    public    has   in   their   operation,    are    sul)ject,    as   to 

13.  New  York  C.  &  H.  River  15.  Missouri  Pac.  R.  Co.  v.  State 
R.  Co.  V.  Gray,  239  U.  S.  583,  60  ox  rel.  Taylor,  216  U.  S.  262.  54  L 
L.  Ed.  451,  36  Sup.  Ct.  176;  South-  Ed.  472,  30  Sup.  Ct.  330;  Prentis 
ern  Pac.  Terminal  Co.  v.  Inter-  v.  Atlantic  Coast  Line  Co.,  211  U. 
state  Commerce  Commission,  219  S.  210,  53  L.  Ed.  150,  29  Sup.  Ct. 
U.  S.  498,  55  L.  Ed.  310,  31  Sup.  67;  Atlantic  Coast  Line  R.  Co.  v. 
Ct.  279.  Wharton,  207  U.  S.  328,  52  L.  Ed. 

14.  Chicago,  I.  &  L.  R.  Co.  v.  230,  28  Sup.  Ct.  121;  Atlantic  Coast 
United  States,  219  U.  S.  480,  55  L.  Line  R.  Co.  v.  North  Carolina  Cor- 
Ed.  305,  31  Sup.  Ct.  272.  poration  Commission,  206  U.  S.  1, 


•§  29]  State   and    Feuekal    Powers  83 

their  state  business,  to  state  regulation,  which  may 
be  exercised  either  directly  by  legislative  authority  or 
by  administrative  bodies  endowed  with  the  power  to 
that  end.*"  But  this  power  of  regulation,  if  it  were  exer- 
cised by  a  state  in  such  an  arbitrary  oi-  unreasonabh' 
manner  as  to  take  the  property  of  the  carrier  \vi11i 
out  compensation,  is  void  under  the  Fourteenth  Amend- 
ment.'" Applying  the  foregoing  ])rinci])les,  an  order 
of  a  state  commission  requiring  an  interstate  carrier 
to  operate  a  passenger  train  over  a  branch  line  from 
a  point  within  the  state  to  the  state  line,  was  not  so 
arbitrary  and  unreasonable,  under  the  facts,  as  to  be 
invalid  under  the  Fourteenth  Amendment,  nor  was  it 
an  undue  burden  uj^on  interstate  commerce  even  though 
there  weie  no  station  facilities  at  the  state  line."  And 
likewise  an  order  of  a  public  service  commission 
requiring  a  carrier  to  operate  two  passenger  trains 
daily  each  way  on  a  line  theretofore  used  for  freight 
traffic,  only,  is  valid ;*^  but  an  order  of  the  Mississippi 
Railroad  Commission  recjuiring  the  operation  of  certain 
passenger  trains  each  way  daily  on  the  lino  of  an  inter- 

51  L.  Ed.  933,  27  Sup.  Ct.  585.  11  510,  56  L.  Ed.  86:'..  32  Sup.  Ct.  535; 

Ann.    Cas.    398;      Henningtou    v.  Cleveland,  C,  C.  &  St.  L.  Ry.  Co. 

State,  163  U.  S.  299,  41  L.  Ed.  166,  v.  People,  177  U.  S.  514,  44  L.  Ed. 

16  Sup.  Ct.  1086;    Delaware,  L.  &  868,  20  Sup.  Ct.  722;    Lake  Shore 

W.   R.  Co.   V.   Van   Santwood.   216  &  M.   S.   Ry.  Co.   v.   State  ex  rel. 

Fed.  252.  Lawrence,  173  U.  S.  285,  43  L.  Ed. 

16.      Chesapeake  &  0.  R.  Co.  v.  702.  19  Sup.  Ct.  465. 
Public     Service     Commission     of  17.     Mississippi   R.   R.   Commis- 

West  Virginia,  242  U.  S.  603,  61  L  sion  v.  Mobile  &  O.  R.  Co.,  244  U. 

Ed.  520,  37  Sup.  Ct.  234;    Chicago,  S.  388,  61  L.  Ed.  1216,  37  Sup.  Ct. 

M.   &   St.   P.   R.   Co.   v.   State,   238  602;  Missouri  Pac.  R.  Co.  v.  Tuck- 

U.  S    491.  59  L.  Ed.  1423,  35  Sup.  er,  230  U.  S.  340,  57  L.  Ed.  1507, 

Ct.  869,  L.  R.  A.  1916A  1133;    Chi-  33  Sup.  Ct.  961;    Missouri  Pac.  R. 

cago,  B.  &  Q.  R.  Co.  v.  Railroad  Co.  v    State.  217  U.  S.  196.  54  L. 

Commission  of  Wisconsin.  237  U.  Ed.  727,  30   Sup.  Ct.  461.  18  Ann. 

S.  220.  59  L.  Ed.  926,  35  Sup.  Ct  Cas.  989. 

560;    Northern  Pac.  R.  Co.  v.  State  18.       Missouri    Pac.    R.    Co.    v. 

ex  rel.  McCue,  236  U.  S.  585,  59  L.  State  ex  rel.  Taylor,  216  U.  S.  262. 

Ed.   735,   35   Sup.   Ct.   429;     Louis-  54  L.  Ed.  472.  30  Sup.  Ct.  330. 
ville  &  N.  R.  Co.  v.  Garrett.  231  U.  19.     Chesapeake  &  O.  R.  Co.  v. 

S.  298,  58  L.  Ed.  229.  34  Sup.  Ct.  Public     Service     Commission     of 

48;    Washington  ex  rel.  Oregon  R.  West   Virginia.   242   IT.   S.   603.   61 

&  Nav.  Co.  v.  Fairchild.  224  U.  S.  L.  Ed.  520.  37  Sup.  Ct.  234. 


8-i  CoNTHOL   Over    Common    Cakeieks  [■§  29 

state  carrier  between  two  points  in  Mississippi  was, 
under  the  facts,  held  to  deprive  the  carrier  of  its  prop- 
erty without  compensation  in  violation  of  the  Four- 
teenth Amendment. -° 

It  is  the  primal  duty  of  a  carrier  to  furnish  adequate 
facilities  to  the  public  and  that  duty  may  be  compelled, 
although,  by  doing  so,  some  pecuniary  loss  from  render- 
ing such  service  may  result,  and  an'  order  requiring  a 
carrier  to  restore  a  connection  at  a  siding  with  the  train 
of  another  carrier  which  involved  the  operation  of 
another  train  at  a  loss,  was  held  to  be  valid  and  not 
in  conflict  with  the  Fourteenth  amendment.^^  In  so 
far  as  the  Fourteenth  amendment  is  involved,  the 
powers  of  the  state  over  carriers  in  this  connection 
were  well  summarized  by  the  Supreme  Court  in  the 
following  language:'--  "A  state  may  regulate  the  con- 
duct of  railways  within  its  borders,  either  directly 
or  through  a  body  charged  with  the  duty  and  invested 
with  powers  requisite  to  accomplish  such  regulation. 
Mississippi  R.  R.  Commission  vs.  Illinois  Central  R.  R. 
Co.,  203  U.  S.  335;  Prentis  vs.  Atlantic  Coast  Line  R.  R. 
Co.,  211  U.  S.  210;  Louisville  &  Nashville  R.  R.  Com- 
pany vs.  Garrett,  231  U.  S.  298.  Under  this  power  of 
regulation  a  state  may  require  carriers  to  provide 
reasonable  and  adequate  facilities  to  serve  not  only  the 
local  necessities,  but  the  local  convenience  of  the  com- 
munities to  which  they  are  directly  tributary.  Lake 
Shore,  etc.,  R.  R.  Co.  vs.  Ohio,  173  U.  S.  514;"^  Atlantic 
Coast  Line  R.  R.  Co.  vs.  North  Carolina  Corporation 
Commission,  206  U.  S.  1;  Mo.  Pac.  Ry.  Co.  vs.  Kansas, 
216  U.  S.  262;  Chicago,  etc.,  R.  R.'Co.  vs.  Railroad 
Commission  of  Wisconsin,  237  U.  S.  220;  and  such  regula- 
tion may  extend  in  a  proper  case  to  requiring  the  run- 

20.     Misslssir4)i   R-   R-   Commis-  9:33,  27  Sup.  Ct.  585,  11  Ann.  Cas. 

sion  V.  Mobile  &  0.  R.  Co..  244  U.  398. 

S.  388,  61  L.  Ed.  1210,  37  Sup.  Ct.  ^2.  Mississippi  R.  R.  Commis- 
602. 


21.  Atlantic  Coast  Line  R.  Co. 
V.  North  Carolina  Corporation 
Commission,  206  U.  S.  1,  51  L.  Ed. 


sion  V.  Mobile  &  O.  R.  Co.,  244  U. 
S.  388;  61  L.  Ed.  1216,  37  Sup.  Ct. 
602. 


§  29]  State  and  Federal  Powers  ^5 

ning-  of  trains  in  addition  lo  tliose  provided  by  the 
carrier,  even  where  tliis  may  involve  some  pecuniary 
loss,  Atlantic  Coast  Line  R.  R.  vs.  North  Carolina  Cor- 
poration Commission,  sui)ra;  and  Mo.  Pac.  Ry.  C'o.  vs. 
Kansas,  21G  U.  S.  262.  But,  Avhile  the  scope  of  this 
power  of  regulation  over  carriers  is  very  great  and  com- 
prehensive, tlio  property  which  is  invested  in  tiie 
railways  of  the  country  is  nevertheless  under  tlie  pro- 
tection of  the  fundamental  guaranties  of  the  (Consti- 
tution and  is  entitled  to  as  full  protection  of  tlio  law  as 
any  other  private  property  devoted  to  a  jniblic  use, 
and  it  cannot  be  taken  from  its  owners  without  just  com- 
pensation or  without  due  process  of  law.  Wisconsin 
etc.,  R.  R.  Co.  vs.  Jacobson,  179  U.  S.  287;  Atlantic 
Coast  Line  R.  R.  Co.  vs.  North  Carolina  corporation 
Commission,  206  IT.  S.  1;  North  Pacific  R.  R.  Co.  vs. 
North  Dakota,  236  U.  S.  585;  Chicago,  etc.,  R.  R.  Co.  vs. 
Wisconsin,  238  U.  S.  4i)L  This  power  of  regulation  if 
it  is  exercised  in  sucli  an  arbitrary  or  nnreasonable 
manner  as  to  prevent  the  company  from  obtaining  a 
fair  return  upon  the  property  invested  in  the  public 
service  passes  beyond  lawful  bounds,  is  in  effect  a  tak- 
ing of  private  property  without  compensation,  and  is 
void,  because  repugnant  to  the  equal  protection 
clause  of  the  Fourteenth  Amendment  to  the  Consti- 
tution of  the  United  States.  Atlantic  Coast  Line  R.  R. 
Co.  vs.  North  Carolina  Corporation  Commission,  206  U. 
S.  1;  Missouri  Pac.  Ry.  Co.  vs.  Nebraska,  217  U.  S.  196; 
Missouri,  etc.,  R.  R.  Co.  vs.  Tucker,  230  U.  S.  340;  North- 
ern Paciiic  R.  R.  Co.  vs.  North  Dakota,  236  U.  S.  585. 
Whether  a  statute  enacted  by  the  legislature  of  a  state 
or  an  order  passed  by  a  railroad  commission  exceeds  the 
bounds  which  the  law  thus  sets  to  such  authority  is 
a  question  of  law  arising  on  the  facts  of  each  case 
(Mississippi  Railroad  Commission  vs.  Illinois  Central  R. 
R.  Co.,  supra),  and  the  appropriate  remedy  for  determin- 
ing that  question  is  a  bill  in  equity  such  as  was  filed 
in  this  case  to  enjoin  its  enforcement." 


86 


Control   Over   Common    Carriers 


[§  30 


§  30.  State  and  Municipal  Regulations  Prescribing 
Speed,  Signals  and  Stoppage  of  Interstate  Trains.  The 
power  to  regulate  the  speed  or  signals  of  interstate, 
trains,  and  to  require  passenger  trains  carrying  inter- 
state travelers  to  stop  at  stations,  belongs  to  those  sub- 
ject matters  of  interstate  commerce  wliich  may  be  con- 
trolled by  the  states  in  the  absence  of  legislation  by 
Congress.-'^  But  the  states,  even  without  national  regula- 
tion, cannot  subject  interstate  transportation  to  un- 
reasonable regulations.-*  Until  Congress  occupies  the 
field,  municipal  corporations  maj^  regulate  the  speed  of 
interstate  trains  within  their  limits,  and  ordinances 
passed  for  that  purpose  are  not  invalid  as  interfering 
witii  interstate  commerce  unless  thev  constitute  an  un- 


23.  Section  11,  supra;  Lasater 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  177 
Mo.  App.  534,  160  S.  W.  818. 

A  state  law  and  an  order  of  a 
state  commission  tliereunder  re- 
quiring four  passenger  trains  each 
way,  if  so  many  are  run  daily,  to 
stop  at  all  county  seat  stations,  is 
net  an  undue  burden  upon  inter- 
state commerce.  Gulf,  C.  &  S.  F. 
R.  Co.  V.  State,  24G  U.  S.  58,  62  L. 
Ed. ,  38  Sup.  Ct.  236. 

24.  Southern  Ry.  Co.  v.  King. 
217  U.  S.  524,  54  L.  Ed.  868,  30 
Sup.  Ct.  594;  Lusk  v.  Town  of 
Dora,  224  Fed.  650.  In  Southern 
Ry.  Co.  V.  King,  supra,  the  Court 
said:  "Applying  the  general  rule 
to  be  deduced  from  these  cases  to 
such  regulations  as  are  under  con- 
sideration here,  it  is  evident  that 
the  constitutionality  of  such  stat- 
utes will  depend  upon  their  ef- 
fect upon  interstate  commerce.  It 
is  consistent  with  the  former  de- 
cisions of  this  court  and  with  a 
proper  interpretation  of  constitu- 
tional rights,  at  least  in  the  ab- 
sence of  Congressional  action  upon 
the   same    subject-matter,    for   the 


State  to  regulate,  the  manner  in 
which  interstate  trains  shall  ap- 
proach dangerous  crossings,  the 
signals  which  shall  be  given,  and 
the  control  of  the  train  which  shall 
be  required  under  such  circum- 
stances. Crossings  may  be  so  sit- 
uated in  reference  to  cuts  or  curves 
as  to  render  them  highly  danger- 
ous to  those  using  the  public  high- 
ways. They  may  be  in  or  near 
towns  or  cities,  so  that  to  approach 
them  at  a  high  rate  of  speed  would 
be  attended  with  great  danger  to 
life  or  limb.  On  the  other  hand, 
highway  crossings  may  be  so  nu- 
merous and  so  near  together  that 
to  require  interstate  train3  to 
slacken  speed  indiscriminately  at 
all  such  crossings  would  be  prac- 
tically destructive  of  the  success- 
ful operation  of  such  passenger 
trains.  Statutes  which  require  the 
;jpeed  of  such  trains  to  be  checked 
at  all  crossings  so  situated  might 
not  only  be  a  regulation,  but  also 
a  direct  burden  upon  interstate 
commerce,  and  therefore  beyond 
the  power  of  the  State  to  enact." 


§  30] 


State  and  Fkdkkal  Powers 


87 


reasoiialjlo  burden  u)»(>n  intcrslalc  (•oiniiicrce.'''  A  state 
statute  requiring'  railroads  to  convey  livestock  at  siieli 
a  rate  of  speed  that  the  time  consumed  from  the  initial 
to  the  delivering  point  shall  not  exceed  one  hour  foi- 
each  eighteen  miles  traveled,  is  valid.'"" 

The  power  of  a  state  to  recpiire  interstate  trains 
to  stop  at  stations  to  discharge  and  receive  passengers 
is,  sul)ject  to  the  limitations  (a)  that  the  law  or  regula- 
tion must  not  be  an  unreasonable  burden  upon  interstate 
commerce  and  (b)  that  the  passenger  service  otherwise 
afforded  is  not  reasonably  adequate  in  tli(>  light  of  all 
the  surrounding  facts  and  circumstances.''  The  adjudi- 
cations of  the  national  Supreme  Court  furnish  many 
illustrations  of  the  application  of  these  principles  to 
concrete  cases.-*     A  statute  of  the  state  of  Wisconsin 


25.  Erb  V.  Morasch,  177  U.  S. 
584,  44  L.  Ed.  897,  20  Sup.  Ct. 
819;  Lusk  V.  Town  of  Dora,  224 
Fed.  650. 

An  order  of  a  state  railroad 
commission  requiring  passenger 
trains  within  the  state  to  start 
from  their  point  of  origin  and 
from  stations  on  the  line  in  ac- 
cordance with  advertised  schedule, 
with  an  allowance  of  not  exceed- 
ing thirty  minutes  at  junction 
points  to  make  connections  with 
other  trains,  was  invalid  under  the 
commerce  clause,  being  an  undue 
burden  upon  interstate  commerce. 
Missouri.  K.  &  T.  R.  Co.  v.  State, 

245  U.  S.  484,  r,2.  U  Ed.  ,  ?.8 

Sup.  Ct.  212. 

26.  Chicago.  B.  &  Q.  R.  Co.  v. 
Kyle.  228  U.  S.  85,  57  T..  Ed.  741, 
3-^  Sup.  Ct.  440:  Chicago.  B.  &  Q. 
R.  Co.  V.  Cram,  228  U.  S.  70,  57  L. 
Ed.  734,  33  Sup.  Ct.  437. 

27.  Missouri,  K.  &  T.  Ry.  Co.  v. 
Town  of  Witcher,  25  Okla.  586,  106 
Pac.   852;     Gulf,   C.   &    S.   F.    Ry. 

Co.  V.  State.  Tex.  Civ.  App. 

,  169  S.  W.  R85:    State  ox  rel. 


Great  Northern  R.  v.  Railroad 
Commission  of  Washington,  GO 
Wash.  218,  110  Pac.   1075. 

28.      Gulf  C.   &   S.   F.   R.   Co.    v. 
State,    246    U.    S.    58,    62    L.   Ed. 

.  38  Sup.  Ct.  236;    Chicago,  B. 

&  Q.  R.  Co.  v.  Railroad  Commis- 
sion of  Wisconsin,  237  U.  S.  220, 
59  L.  Ed.  926.  35  Sup.  Ct.  560; 
Herndon  v.  Chicago,  R.  I.  &  P. 
R.  Co..  218  U.  S.  135,  54  L.  Ed.  970, 
30  Sup.-  Ct.  633:  Atlantic  Coast 
Line  R.  Co.  v.  Wharton.  207  V.  S. 
328.  52  L.  Ed.  230,  28  Sup.  Ct. 
121:     Atlantic   Coast   Line   R.   Co. 

V  North  Carolina  Corporation 
Commission,  206  U.  S.  1,  51  L.  Ed. 
933,  27  Sup.  Ct.  585,  11  Ann.  Cas. 
398:  ^lississippi  R.  R.  Commis- 
sion v.  Illinois  Cent.  R.  Co.,  203  T^. 
S.  .135,  51  L.  Ed.  209.  27  Sup.  Ct. 
90;     Lake  Shore  &   .M.   S.  Ry.  Co. 

V  State  ex  rel.  Lawrence,  173  U. 
S.  285.  43  L.  Ed.  702.  19  Sup.  C^ 
4G5:  Gladson  v.  State,  166  U.  S. 
427,  41  L.  Ed.  1064.  17  Sup.  Ct. 
627:  Illinois  Cent.  R.  Co.  v.  State. 
163  U.  S.  142,  41  L.  Ed.  107,  16  Sup 
Ct.    1096. 


88  CoNTHOT.   Over    Common    Carriees  [§  30 

prescribed  that  every  railroad  corporation  running  four 
or  more  passenger  trains  through  a  village  daily  should 
stop  at  least  two  of  them  to  receive  and  discharge  pas- 
sengers. In  deciding  that  this  statute  was  invalid  as 
being  an  unlawful  burden  upon  interstate  commerce,  the 
court  said:-''  "The  statute  includes,  necessarily,  the 
Supreme  Court  held,  interstate  passenger  trains  and 
clearh^  excludes  accommodation  freight  trains;  and, 
so  viewing  it,  the  Su})reme  Court  pronounced  it  a  proper 
exercise  of  the  power  of  the  State.  In  reviewing  the 
decision  we  may  start  with  certain  principles  as  es- 
tablished: (1)  It  is  competent  for  a  State  to  require 
adequate  local  facilities,  even  to  the  stoppage  of  inter- 
state trains  or  the  re-arrangement  of  their  schedules. 
(2)  Such  facilities  existing — that  is,  the  local  conditions 
being  adequately  met — the  obligation  of  the  railroad 
is  performed,  and  the  stoppage  of  interstate  trains  be- 
comes an  improper  and  illegal  interference  with  inter- 
state commerce.  (3)  And  this,  whether  the  interference 
be  directly  by  the  legislature  or  b}^  its  command  through 
the  orders  of  an  administrative  body.  (4)  The  fact  of 
local  facilities  this  court  may  determine,  such  fact 
being  necessarily  involved  in  the  determination  of  the 
Federal  question  whether  an  order  concerning  an  inter- 
state train  does  or  does  not  directly  regulate  interstate 
commerce,  by  imposing  an  arbitrary  requirement.*  *  * 
These,  then,  are  the  factors,  and  we  do  not  put  out  of 
view  the  difficulties  which  infest  the  case,  but,  consider- 
ing them  all  and  the  deference  due  to  state  legislation, 
we  are  constrained  to  hold  tlie  Wisconsin  statute 
invalid." 

§  31.  Georgia  "Blow-Post"  Law  Invalid,  Being 
a  Direct  Burden  upon  Interstate  Commerce.  Applying 
the  principles  stated  in  the  foregoing  paragraph,  a 
law  of  the  state  of  Georgia  requiring  every  locomotive 
engineer  to  blow  the   whistle   and  to   check   and   keeii 

29.     Chicago,  B.  &  Q.  R.  Co.  v.       sin,  237  U.  S.  220,  59  L.  Ed.   926, 
Railroad    Commission   of   Wiscon-      35  Sup.  Ct.  560. 


<5«  '51  ]  State  and  Federal  Powers  89 

checking  tlie  speed  of  liis  train  four  hundred  yards  from 
each  grade  crossing  so  as  to  stop  the  train  in  time  to 
prevent  injury  sliould  any  person  or  thing  be  crossing 
the  track,  was  held  to  l)e  invalid  for  the  reason  that 
it  was  an  unreasonable  regulation  of  or  ])urden  upon 
interstate  commerce  and,  therefore,  in  viohition  of  the 
commerce  clause.'"'  '''IMie  Company,"  said  the  court, 
"set  out  the  a])]>1icable  sections  of  tlie  law  and  alleged 
that  its  ti'ain  was  running  in  interstate  commerce  be- 
tween tlie  states,  and  especially  between  Georgia  and 
South  Carolina.  That  between  the  cit^y  of  Atlanta, 
Georgia,  and  the  Savannah  river,  a  distance  of  128 
miles,  w^here  the  same  is  the  boundary  line  of  Georgia, 
there  are  124  points  where  the  line  of  the  railroad 
crosses  public  roads  of  the- different  counties  of  the 
•  state,  established  pursuant  to  law,  and  that  all  of  such 
crossings  are  at  grades.  That  in  order  to  comply  witli 
the  law  the  speed  of  a  train  would  have  to  be  so  slack- 
ened that  tliere  would  be  practically  a  full  stop  at  each 
of  the  road  crossings;  that  the  time  required  for  such 
l)uri)ose  would  depend  upon  various  conditions,  which 
might  or  might  not  exist  at  the  time  and  at  the  cross- 
ings; among  others,  the  state  of  the  weather  and  the 
percentage  of  grade;  but  it  would  not  be  less  than  three 
minutes  for  a  train  composed  of  an  engine  and  three 
cars,  and  for  a  train  of  a  greater  number  of  cars  the 
time  would  be  greater, — for  an  average  freight  train, 
not  less  than  five  minutes.  That  the  train  alleged  to 
have  caused  the  death  of  the  deceased  was  composed 
of  an  engine,  a  mail  car,  and  two  coaches,  and  that 
if  the  Blow-Post  Law  had  been  complied  with  on  the 
day  in  question  at  least  three  minutes  would  have  been 
consumed  at  each  crossing, — more  than  six  hours  be- 
tween Atlanta  and  the  Savannah  river.  That  the  run- 
ning time  between  those  points  according  to  the  adoi^ted 
schedule  was  four  hours  and  thirty  minutes.  That 
if  the  law  had  been  complied  with  the  time  consumed 

30.  Seaboard  Air  Line  Ry.  Co.   Ed.  IIGO,  37  Sup.  Ct.  640.  L.  R. 
V.  Blaokwell,  244  U.  S.  310,  61  L.   A.  1917F  1184. 


90  Control   Over   Common    Carriers  [§  31 

between  tliose  points  would  liave  been  more  than  ten 
and  oue-lialf  hours.  That  for  freight  trains  the  time 
consumed  would  be  more  than  sixteen  hours,  the  maxi- 
mum speed  of  such  trains  on  the  company's  road  being 
20  miles  an  hour.  That  the  crossings  are  the  usual  and 
ordinary  grade  crossings  and  there  are  no  conditions 
which  make  any  one  of  them  peculiarly  dangerous 
other  than  such  danger  as  may  result  from  the  crossing 
of  a  public  road  by  a  railroad  track  at  grade.  That 
between  the  city  of  Atlanta  and  the  Savannah  river 
the  line  of  the  company's  railroad  crosses  the  tracks 
of  two  other  railroads,  and  that  under  the  laws  of  the 
state  a  train  is  required  to  come  to  a  full  stop  50  feet 
from  the  crossing,  and  that  the  time  so  consumed  would 
increase  the  time  required  to  operate  between  the  points 
referred  to.  *  *  *  The  facts  so  specified,  and  which 
it  was  decided  would  give  illegal  operation  to  the 
statute,  are  alleged  in  the  present  case,  and  assuming 
them  to  be  true, — and  we  must  so  assume, — compel  the 
conclusion  that  the  statute  is  a  direct  burden  upon  inter- 
state commerce,  and,  being  such,  is  unlawful." 

§  32.     States  May  Compel  Carriers  to  Make  and 
Maintain  Track  Connections  for  Interchange  of  Traffic. 

Railroads  constitute  public  highways  of  a  most  im- 
portant character,  and  the  states  have,  therefore,  the 
power  to  regulate  in  a  reasonable  and  proper  manner, 
the  conduct  and  business  of  railroad  corporations  in 
so  far  as  they  relate  to  intrastate  traffic. ^^  This  power 
is,  however,  subject  to  the  Fourteenth  Amendment  to 
the  Constitution  of  the  United  States  which  prohibits 
the  taking  of  property   without  due  process   of  law;^^ 

31.      Great    Northern    R.    Co.    v.  United  States  v.  Joint-Traffic  Ass'n, 

State    ex    rel.    State    Railroad    &  171   U.   S.   505,    43   L.   Ed.   259,   19 

Warehouse  Commission,  238  U.  S.  Sup.   Ct.   25;     Cherokee  Nation   v. 

340,  59  L.  Ed.  1337,  35  Suu.  Ct.  753;  Southern   Kansas  Ry.   Co.,   135   U. 

Wadley  Southern  R.  Co.  v.  State,  S.  641,  34  L.  Ed.  295,  10  Sup.  Ct. 

235   U.    S.   651,   59    L.   Ed.   405,    35  965. 

Sup.    Ct.   214;     Lake   Shore    &    M.  32.     Florida  East  Coast  R.   Co. 

S.  Ry.  Co.  V.  State,  173  U.  S.  285,  v.  United  States,  234  U.  S.  167,  38 

43    L.    Ed.    702,   19    Sup.    Ct.    465;  L.  Ed.  1267,  34  Sup.  Ct.  867;  Grand 


§  32 J  State  and  Fkokhal  Powkhs  91 

but  ill  so  far  as  the  oommerce  clause  of  tlie  Constitution 
is  concerned  and  tlie  autliority  delegated  to  the  Inter- 
state Commerce  Commission  by  Congress  under  that 
clause,  the  states  still  have  the  power  to  require  rail- 
road companies  to  make  track  connections  where;  tin; 
established  facts  show  i)ublic  necessity  therefor,  just 
regard  being  given  to  advantages  which  will  probably 
result  to  one  side  and  necessary  expenses  to  be  incurred 
on  the  other. •^•' 

Congress  has  not  taken  over  the  whole  subject  of 
terminals,  switches  and  sidings  so  that  all  powers  of 
the  state  relating  thereto  are  void.'*  Even  when  con- 
sidered with  respect  to  interstate  traffic  as  well  as  intra- 
state traffic,  an  order  of  an  administrative  body  of  the 
state  recpiiring  a  track  connection  between  two  carriers 
is  not  void.'"^  But  in  any  event,  such  connections 
may  be  compeHed  for  the  benefit  of  intrastate  traffic.""' 
In  the  Jacobson  case,  the  court  said:  "Plaintiff  in 
error  urges  that  transporting  cattle  from  Minnesota 
to  Iowa  constitutes  interstate  commerce,  and  that 
neither  the  State  of  Minnesota  nor  its  railroad  commis- 
sion has  the  right  to  in  any  manner  interfere  with  or 
regulate  such  commerce.  The  judgment  in  this  case, 
however,  neither  regulates  nor  interferes  with  that  com- 
merce, nor  does   t1iat    ])art   of   the    statute   u])()U    which 

Trunk  R.  Co.  of  Canada  v.  Michi-  A.  .S89,  70  Ann.  St.  Rep.  358,  74  N. 

gan  R.  R.  Commission,  231  U.  S.  W.  893.  affirmed  in  179  U.  S.  287, 

457,  58  L.  Ed.  310,  34  Sup.  Ct.  152;  45  L.  Ed.  194,  21  Sup.  Ct.  115. 

Interstate  Commerce   Commission  34     Grand  Trunk  R.  Co.  of  Can- 

V.  Louisville  &  N.  R.  Co.,  227  U.  ^j^  v.  ]\Iichigan  R.  R.  Commission, 

S.  510,  56  L.  Ed.  863,  32   Sup.  Ct.  331   U.    S.    457,   58   L.   Ed.    310,   34 

185;     Washington   ex   rel.   Oregon  g        ^^    ^^^ 

R.  &  Nav.  Co.  V.  Fairchild,  224  U.  35      g^aboard  Air  Line  Ry.  Co. 

S.  510.  56  L.  Ed.  563,  32  Sup.  Ct.  ^,  j^^^^,^^^  Commission  of  Georgia. 

535;      Central   Stock  Yards  Co.   v.  ,40   u.    S.   324.  60   L.   Ed.   669,   36 
Louisville  &  N.  R.  Co..  192  U.  S. 
508,  48  L.  Ed.  565,  24  Sup.  Ct.  339: 
Minneapolis    &    St.    L.    R.    Co.    v. 

Minnesota.    186    U.    S.    257,    46    L.  ^5  Sup.  Ct.  214. 

Ed.  1151.  22  Sup.  Ct.  900.  36.     Wisconsin,  M.   &  P.  R.  Co. 

33.     Jacobson   v.   Wisconsin.   M.  v.   Jacobson,   179  U.   S.  287,   45  L. 

&  P.  R.  Co.,  71  Minn.  519.  40  L.  R.  Ed.  194,  21  Sup.  Ct.  115. 


Sup.  Ct.  260;    Wadley  S.  R.  Co.  v. 
State,  235  U.  S.  651,  59  L.  Ed.  405. 


92  Control   Over   Common   Carriers  [§  32 

the  judgment  is  founded.  Whether  any  other  portion 
of  the  statute  does  regulate  such  commerce  is  beside 
the  question,  and  it  is  not  necessary  to  here  decide. 
To  provide  at  the  place  of  intersection  of  these  two 
railroads,  at  Hanley  Falls,  ample  facilities  by  track 
connections  for  transferring  any  and  all  cars  used  in 
the  regular  business  of  the  respective  lines  of  road 
from  the  lines  or  tracks  of  one  of  said  companies  to 
those  of  the  other,  and  to  provide  at  such  place  of 
intersection  equal  and  reasonable  facilities  for  the  inter- 
change of  cars  and  traffic  between  their  respective  lines, 
and  for  the  receiving,  forwarding  and  delivering  of 
property  and  cars  to  and  from  their  respective  lines, 
as  provided  for  by  this  judgment,  would  plainly  afford 
facilities  to  interstate  commerce,  if  there  were  any,  and 
would  in  nowise  regulate  such  commerce  within  the 
meaning  of  the  Constitution.  That  is  all  that  has  been 
done  by  the  judgment  under  review.  A  State  may 
furnish  such  facilities  or  direct  them  to  be  furnished 
by  persons  or  corporations  within  its  limits  without 
violating  the  Federal  Constitution.  But  the  Supreme 
Court  of  the  State,  in  the  opinion  delivered  therein, 
said  that  there  was  ample  evidence  in  the  case  of  a 
necessity  for  such  track  connection  resulting  from  the 
benefit  which  would  accrue  to  exclusively  state  com- 
merce when  considered  alone,  to  justify  the  ordering 
of  the  connection  in  question." 

§  33.  Validity  of  State  Laws  Providing  for  "Full 
Crews"  on  Interstate  Trains.  Under  the  grant  of  pow- 
er to  it  by  the  commerce  clause.  Congress  may  take  en- 
tire charge  of  the  equipment  and  management  of  inter- 
state trains,  but  it  has  not  done  so  in  respect  to  the 
number  of  employes  to  whom  may  be  committed  the 
actual  management  of  cars  or  trains  containing  inter- 
state traffic.  Until,  therefore.  Congress  establishes 
regulations  on  that  subject,  the  states  may  enact  such 
laws  covering  the   subject  matter   that  are  reasonable 


§  33J 


State  and  Federal  Powers 


93 


and  not  an  undue  burden  upon  interstate  commerce." 
A  state  law  requiring  tliree  brakemen  on  every  freigbt 
train  consisting  of  more  tlian  twenty-five  cars  is,  there- 
fore, valid  even  as  to  trains  containing  interstate  traf- 
fic.^'* Similarly  a  subscMjuent  statute  of  the  same  state, 
providing  that  no  railroad  company  owning  yards  or 
terminals  in  cities  where  cars  were  switched  across 
l)ublic  crossings,  should  operate  or  switch  cars  with  less 
than  six  employes,  was  sustained  by  the  national  Su- 
preme Court  as  a  proper  exercise  of  the  police  power 


37.  Reid  v.  Colorado,  187  U.  S. 
137,  47  L.  Ed.  108,  23  Sup.  Ct.  92; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Haber, 
169  U.  S.  613,  42  L.  Ed.  878,  18 
Sup.  Ct.  488;  Chicago,  M.  &  St.  P. 
Ry.  Co.  V.  Solan,  169  U.  S.  133,  42 
L.  Ed.  688,  18  Sup.  Ct.  289;  New 
York,  N.  H.  &  H.  R.  Co.  v.  People, 
165  U.  S.  628,  41  L.  Ed.  853,  17 
Sup.  Ct.  418;  Western  U.  Tel.  Co. 
V.  James,  162  U.  S.  650,  40  L.  Ed. 
1105,  16  Sup.  Ct.  934;  Gulf,  C.  & 
S.  F.  Ry.  Co.  V.  Hefley,  158  U.  S. 

98,  39  L.  Ed.  910,  15  Sup.  Ct.  802; 
Nashville,  C.  &  St.  L.  Ry.  Co.  v. 
Alabama,  128  U.  S.  96,  32  L.  Ed. 
352,  9  Sup.  Ct.  28;  Smith  v.  Ala- 
bama, 124  U.  S.  465,  31  L.  Ed.  508. 
8  Sup.  Ct.  564;  County  of  Mobile 
V.  Kimball,  102  U.  S.  691,  26  L.  Ed. 
238;     Sherlock  v.  Ailing,  93  U.  S. 

99,  23  L.  Ed.  819. 

38.  Chicago,  R.  I.  &  P.  R.  Co.  v 
State.  219  U.  S.  453,  55  L.  Ed.  290, 
31  Sup.  Ct.  275,  in  which  the  court 
said:  "It  is  not  too  much  to  say 
that  the  State  was  under  an  obli- 
gation to  establish  such  regula- 
tions as  were  necess?ry  or  reason- 
able for  the  safety  of  all  engaged 
in  business  or  domiciled  within 
its  limits.  Beyond  doubt,  passen- 
gers on  Interstate  carriers  while 
within  Arkansas  are  as  fully  en- 
titled to  the  benefits  of  valid  local 
laws  enacted  for  the  public  safety 


as  are  citizens  of  the  State.  Local 
statutes  directed  to  such  an  end 
have  their  source  in  the  power  of 
the  State,  never  surrendered,  of 
caring  for  the  public  safety  of  all 
within  its  jurisdiction;  and  the 
validity  under  the  Constitution  of 
the  United  States  of  such  statutes 
is  not  to  be  questioned  in  a  Fed- 
eral court  unless  they  are  clearly 
inconsistent  with  some  power 
granted  to  the  General  Govern- 
ment or  with  some  right  secured 
by  that  in.strument  or  unless  they 
are  purely  arbitrary  ii.  their  na- 
ture. The  statute  here  involved 
is  not  in  any  proper  sense  a  regu- 
lation of  interstate  commerce  nor 
does  it  deny  the  equal  protection 
of  the  laws.  Upon  its  face,  it  muit 
be  taken  as  not  directed  against 
interstate  commerce,  but  as  having 
been  enacted  in  aid,  not  in  obstruc- 
tion, of  such  commerce  and  for 
the  protection  of  those  engaged  in 
such  commerce.  Under  the  evi- 
dence, there  is  admittedly  some 
room  for  controversy  at  to  wheth- 
er the  statute  is  or  was  neces- 
sary; but  it  cannot  be  said  that 
it  is  so  unreasonable  as  to  justify 
the  court  in  adjudging  that  it  is 
merely  an  arbitrary  exercise  of 
power  and  not  germane  to  the 
objects  which  evidently  the  stnf:" 
legislature  had   in  view." 


94  Control   Over    Common    Carriers  [§  33 

of  the   state  and   not   an  interference  or  burden   upon 
interstate  commerce. ^^ 

§  34.  State  Regulations  or  Charges  for  Transporta- 
tion by  Water.  Tlie  judicial  power  of  the  courts  of 
tlio  United  States  extends  to  all  cases  of  admiralty 
and  maritime  transportation.*"  Under  this  clause  of 
the  Constitution,  the  jurisdiction  of  the  federal  govern- 
ment extends  to  transportation  over  navigable  waters 
of  the  United  States  and  upon  the  high  seas  even  be- 
tween two  points  or  places  in  the  same  state."  ''Great 
mischief  would  inevitably  result  from  any  rule  denying 
admiralty  jurisdiction  in  all  cases  where  the  place  of 
the  departure  of  the  vessel  and  the  place  of  her  destina- 
tion are  both  within  the  same  state,  when  no  part  of  • 
the  voyage  is  upon  the  high  seas,  for  every  navigator 
knows  that  in  many  such  cases  nearly  the  whole  voyage 
is  out  of  the  limits  of  a  state. "*^  The  Interstate  Com- 
merce Act  does  not  apply  to  carriers  by  water  unless  oper- 
ating under  a  common  control,  management  or  arrange- 
ment for  a  continuous  shipment  with  a  carrier  by  rail.*^ 

In  the  absence  of  legislation  by  Congress  upon  the 
same  subject  matter,  a  state  may  regulate  the  charges 
of  water  carriers  for  transportation  of  passengers  and 
property  even  over  the  high  seas  between  two  ports 
in  the  same  state  when  the  water  carrier  operates 
independently  of  a  carrier  by  rail;"  for  the  subject  mat- 

.39.     St.  Louis,  1.  M.  &  S.  Ry.  Co.  gress   creating   the    United    States 

V.  State,  240  U.  S.  518,  60  L.  Ed.  Shipping  Board,  approved  Sept.  7, 

776,  36  Sup.  Ct.  443.  1916,  39  Stat,  at  L.  728,  Congress 

40.  Section  2,  Article  3  of  the  seems  to  have  exercised  its  con- 
Constitution,  trol  over  the  charges  of  water  car- 

41.  The  Belfast,  7  Wall.  (U.  S.)  riers  for  transportation  over  the 
624,  19  L.  Ed.  266.  high  seas  between  two  ports  in  the 

42.  Cowden  v.  Pacific  Coast  S.  same  state;  for  a  common  carrier 
S.  Co.,  94  Cal.  470,  18  L.  R.  A.  221,  by  water  in  interstate  commerce 
28  Am.  St.  Rep.  142,  29  Pac.  873.  is  therein  defined  as  a  common  car- 

43.  Section  92,  infra.  rier  engaged  in  the  transportation 

44.  Wilmington  Transp.  Co.  v.  by  water  of  passengers  or  property 
Railroad  Commission  of  Call-  on  the  high  seas  or  the  great  lakes 
fornia,  236  U.  S.  151,  59  L.  Ed.  508,  or  on  regular  routes  from  port 
35  Sup.  276.     By  the  act  of  Con-  to   port  between   one   state,   terri- 


§  ?A]  Sta'I'k  anu  I^'kdkual  P(j\vkks  yO 

ter  is  of  a  local  nature  admitting  of  diversity  of  treat- 
'ment  according-  to  local  necessities  of  each  state  until 
Cont^ress  exercises  its  control  by  legislation.  A  state 
may  also  regulate  the  rates  for  ferriage  from  its  shore 
to  the  shore  of  another  state  when  the  ferry  is  being 
o))erated  witliout  any  comnion  arrangement  with  a  rail 
carrier.''  "Considering  the  conditions  of  interstate 
railroad  transi)ortation,"  said  the  court  in  the  last  case 
cited,  "which  might  extend  not  only  from  one  State 
to  another  but  through  a  series  of  States,  or  across  the 
Continent,  and  the  conse(iueuces  which  would  ensu(^  if 
each  State  should  undertake  to  fix  rates  for  such  por- 
tions of  continuous  interstate  hauls  as  might  be  with- 
in its  territory,  the  conclusion  was  reached  that  'this 
species  of  regulation'  was  one  'which  must  l)e,  if  es- 
tablished at  all,  of  a  general  and  national  character' 
and  could  not  be  'safely  and  wisely  remitted  to  local 
rules.'  But,  in  the  case  of  ferries,  we  liave  a  subject 
of  a  different  character.  We  dismiss  from  considera- 
tion those  ferries  which  are  operated  in  connection  witli 
railroads,  and  cases,  if  any,  where  the  ferriage  is  part 
of  a  longer  and  continuous  transportation.  Ferries, 
such  as  are  involved  in  the  present  case  are  simply 
means  of  transit  from  shore  to  shore.  These  have  al- 
ways been  regarded  as  instruments  of  local  convenience 
which,  for  the  proper  protection  of  the  i)ul)lic,  are  sub- 
ject to  local  regulation;  and  where  the  ferry  is  conducted 
over  a  boundary  stream,  each  jurisdiction  with  resi^ect 
to  the  ferriage  from  its  shore  has  exercised  this  protec- 
tive power.  There  are  a  multitude  of  such  ferries  through- 
out the  country  and,  apart  from  certain  rules  as  to  naviga- 
tion, they  have  not  engaged  the  attention  of  Congress. 

tory,  district,  or  possession  of  tho  commerce  shall  establish,  observe 

United  States  and  any  other  state,  and    enforce   just   and   reasonable 

territory,  district,  or  possession  of  rates,  fares,  charges,  etc. 

the    United     States,     or    between  45.  Port  Richmond  &  b.  P.  Ferry 

places  in  the  same  territory,  dis-  Co.   v.    Board   Chosen   Freeholders 

trict  or  possession.     Section  18  of  County  of  Hudson.  234  U.  S.  317.  58 

the  act  provides  that  every   com-  L.  Ed.  U?,0,  34  Sup.  Ct.  821. 
mon  carrier  by  water  in  interstate 


96  CoxTKOL   Oyer   Common   Carkiees  [§34 

We  also  put  on  one  side  the  question  of  prohibitory  or 
discriminatory  requirements,  or  burdensome  exactions 
imposed  by  tlie  State,  which  may  be  said  to  interfere 
with  the  guaranteed  freedom  of  interstate  intercourse 
or  with  constitutional  rights  of  property.  The  present 
question  is  simply  one  of  reasonable  charges.  It  is 
argued  tliat  the  mere  fact  that  interstate  transporta- 
tion is  involved  is  sufficient  to  defeat  the  local  regula- 
tion of  rates  because,  it  is  said,  that  it  amounts  to  a 
regulation  of  interstate  commerce.  But  this  would  not 
be  deemed  a  sufficient  ground  for  invalidating  the  local 
action  without  considering  the  nature  of  the  regulation 
and  the  special  subject  to  whi^h  it  relates.  Quarantine 
and  pilotage  regulations  may  be  said  to  be  quite  as 
direct  in  their  operation,  but  they  are  not  obnoxious 
when  not  in  conflict  with  Federal  rules.  The  funda- 
mental test,  to  which  we  have  referred,  must  be  applied; 
and  the  question  is  whether,  with  regard  to  rates,  there 
is  any  inherent  necessity  for  a  single  regulatory  power 
over  these  numerous  ferries  across  boundary  streams; 
whether,  in  view  of  the  character  of  the  subject  and  the 
variety  of  regulation  required,  it  is  one  which  demands 
the  exclusion  of  local  authority.  Upon  this  question, 
we  can  entertain  no  doubt.  It  is  true  that  in  the  case 
of  a  given  ferry  between  two  States  there  might  be  a 
difference  in  the  charge  for  ferriage  from  one  side  as 
compared  with  that  for  ferriage  from  the  other.  But 
this  does  not  alter  the  aspect  of  the  subject.  The  ques- 
tion is  still  one  with  respect  to  a  ferry  which  necessarily 
implies  transportation  for  a  short  distance,  almost  in- 
variably between  two  points  only,  and  unrelated  to 
other  transportation.  It  thus  presents  a  situation  es- 
sentially local  requiring  regulation  according  to  local 
conditions.  It  has  never  been  supposed  that  because 
of  the  absence  of  Federal  action  the  public  interest 
was  unprotected  from  extortion  and  that  in  order  to 
secure  reasonable  charges  in  a  myriad  of  such  different 
local  instances,  exhibiting  an  endless  variety  of  circum- 
stances, it  would  be  necessary  for  Congress  to  act  directly 
or    to   establish    for   that    purpose    a    Federal    agency. 


<^  35]  State  and  Fkdekal  Powers  97 

The  matter  is  inuiniiiatcd  l)y  the  consideration  of.  tliis 
.alternative  for  the  point  of  tlie  contention  is  tliat,  there 
being-  no  Federal  I'eguhition,  tlie  ferry  rates  are  to  be 
deemed  free  from  all  control.  The  jHactical  ad\antages 
of  having  the  matter  dealt  witli  by  the  States  are  obvi- 
ous and  are  illustrated  by  the  practice  of  one  hundred 
and  twenty-five  years.  And  in  view  of  the  character 
of  the  subject,  we  find  no  sound  ol),jection  to  its  con- 
tinuance. If  Congress  at  any  time  undertakes  to  regu- 
late such  rates,  its  action  will  of  course  control." 

§  35.  Statutory  Enactments  of  States  requiring 
Facilities  and  Appliances  on  Interstate  Trains.  The 
grant  to  CongTess  of  the  power  to  regulate  commerce 
with  "foreign  nations  and  among  the  several  states, 
did  not,  of  itself  and  without  legislation  by  Congress, 
impair  the  authority  of  the  states  to  establish  such 
reasonable  regulations  as  were  appropriate  for  the  pro- 
tection of  the  health,  the  lives  and  the  safety  of  their 
people  even  though  interstate  commerce  was  incidental- 
ly afi'ected  thereby.**^  Applying  these  principles,  a 
statute  of  the  state  of  New  York  forbidding  steam  rail- 
roads to  heat  passenger  cars  with  a  stove  or  furnace 
kept  inside  of  the  car,  was  held  to  be  a  proper  exercise 

46.       Grossman  v.   Lurman,  192  Smith  v.  Alabama,  124   U.   S.  465, 

U.   S.  189,  48  L.  Ed.   401  24   Sup.  31    L.    Ed.    508,    8    Sup.    Ct.    564; 

Ct.  234;    Austin  v.  State,  179  U.  S.  Ouachita  Packet  Co.  v.  Aiken.  121 

343,  45  L.  Ed.  224,  21  Sup.  Ct.  132;  U.   S.   444,   30   L.   Ed.   976,  7    Sup. 

Baltimore  &  O.   S.  W.  Ry.  Co.  v.  Ct.   907;      Huse  v.  Glover,  119   U. 

Voigt,  176  U.  S.  498,  44  L.  Ed.  560,  S    543,   30  L.   Ed.  487,  7  Sup.  Ct. 

20  Sup.  Ct.  385;  Chicago,  M.  &  St.  313;    Morgan's  Louisiana  &  T.  R. 

P.  Ry.  Co.  V.  Solan,  169  U.  S.  133,  &  S.  S.  Co.  v.  Louisiana  Board  of 

42    L.    Ed.    688,    18    Sup.    Ct.    289;  Health,   118   U.   S.   455,   30   L.   Ed. 

Western  U.  Tel.  Co.  v.  James,  162  237,  6   Sup.  Ct.   1114;      Gloucester 

U.  S.  650,  40  L.  Ed.  1105,  16  Sup.  Ferry  Co.  v.  State,  114  U.  S.  196, 

Ct.    934;     Louisville   &   N.    R.    Co.  30  L.  Ed.  158,  5  Sup.  Ct.  826;  Coun. 

V.  State,  161  U.  S.  677,  40  L.  Ed.  ty    of   Mobile    v.    Kimball,    102    U. 

849,  16  Sup.  Ct.  714;     Plumley  v.  S.    091,   26   L.   Ed.   238;     Sherlock 

Com.,  155  U.  S.  461,  39  L.  Ed.  223.  v.   Ailing   93    U.    S.   99.    23    L.    Ed. 

15   Sup.   Ct.   154;     Nashville,  C.   &  819:     Chicago  &  N.  AV.  R.  Co.  v. 

St.  L.  Ry.  Co.  V.  Alabama.   128  U.  Fuller.    17    Wall.    (U.    S.)    560,    21 

S.  96,  32  L.  Ed.  352,  9  Sup.  Ct.  28;  L.   Ed.   710. 

I    Cmitiol    L'!iriU>r3    7 


98  Control   Over   Common    Carriers  [^  35 

of  tbe  police  power  of  the  state  and  valid  as  to  both 
intrastate  and  interstate  trains  in  the  absence  of  nation- 
al  legislation   dealing  with  the   same   subject  matter/^ 

A  Georgia  statute  requiring  headlights  of  a  certain 
character  on  all  engines  of  trains  within  the  states,  was 
declared  valid  as  to  engines  used  in  interstate  commerce 
for  the  reason  that  Congress  had  not,  at  that  time, 
passed  any  law  covering  the  same  field/^  A  statute 
of  the  state  of  Indiana  prescribing  that  railroad  cars 
should  be  equipped  with  certain  grab  irons  and  hand- 
holds, was  invalid  as  to  all  cars  on  interstate  railroads 
because  Congress,  by  the  enactment  of  the  Federal 
Safety  Appliance  Act  and  the  amendments  thereto, 
had  assumed  control  over  the  same  subject,  and  the 
state  law  was  therefore  inoperative/^  A  state  law 
making  it  unlawful  to  run  any  freight  train  on  Sunday 
was  declared  to  be  valid  even  as  to  interstate  trains 
on  the  ground  that,  although  in  a  limited  degree  af- 
fecting interstate  commerce,  it  was  an  ordinary  police 
regulation  of  the  state  designed  to  secure  the  well- 
being,  and  to  promote  the  general  welfare  of  the  people.^" 

§  36.  Power  of  States  over  Interstate  Employers 
and  Employes  in  Absence  of  Federal  Legislation.  The 
constitutional  grant  to  Congress  to  regulate  interstate 
and  foreign  commerce  is  divisible  into  two  classes, 
tirst,  those  subject  matters  of  commerce  which  are  of 
such  a  nature  that,  if  regulated,  they  must  be  regulated 
by  one  uniform  rule  throughout  the  country,  and  second, 
those  subject  matters  which  are  of  such  a  nature  that 
they  do  not  require  uniformity  of  regulation  and  may, 
therefore,  be  controlled  by  the  states  according  to 
their  respective  local  needs.  The  power  of  Congress 
over  the  first  class  is  exclusive  and  the  state  may  not 

47.  New  York,  N.  H.  &  H.  R.  49.  Southern  R.  Co.  v.  Railroad 
Co.  V.  People,  165  U.  S.  628,  41  L.  Commission  of  Indiana,  23G  U.  S. 
Ed.  853,  17  Sup.  Ct.  418.                        ^g^^  59  ^   Ed.  CGI,  35  Sup.  Ct.  304. 

48.  Atlantic   Coast   Line   R.   Co. 


50.     Hennington  v.  State,  163  U. 
.  291 
Chapter  LIII,   infra.  1086. 


V.  State,  234  U.  S.  280,  58  L.  Ed. 

1312,  34  Sup.  Ct.  829.   But  see   S.  299,  41  L.  Ed.  166,  16  Sup.  Ct. 


§    o()J  S'JAIK   AND    b^KDVAlAL   i'uWHKS  99 

lo^'islato  concoiiiinii:  ii.  Tlioso  subjocls  wliich  fall  un- 
der the  second  class  may  be  regnlaiod  liy  state  laws 
in  the  absence  of  conj^ressional  action.' 

''{'he  relationship  of  master  and  servant  while  en- 
gaged in  interstate  commerce,  falls  within  the  second 
class."  Hence,  the  states,  in  the  absence  of  legislation 
by  Congress  covering  the  same  subject  matter,  have 
full  power  to  detei'inine  the  lial)ility  of  em))loyers  to 
their  employes  although  engaged  in  interstate  com- 
merce." For  example,  a  state  law  regulating  the  hours 
of  employment  on  railroads  and  including  within  its 
scope  interstate  employes,  was  valid  prior  to  the  enact- 
ment of  the  federal  Hours  of  Service  Act.^*  A  state 
law  requiring  every  locomotive  engineer  to  secure  a 
license  was  held  to  be  valid  although  some  of  them 
were  employed  in  interstate  commerce  because  Con- 
gress had  not  legislated  upon  the  same  subject  matter.^^ 
The  statute  of  a  state  requiring  all  railway  locomotive 
engineers  within  the  state  to  be  examined  as  to  their 
capacity  to  distinguish  and  discriminate  between  colors, 
including  those  engaged  in  interstate  commerce,  was 
a  valid  exercise  of  the  police  powers  of  the  state  in  the 
absence  of  legislation  by  Congress  covering  the  same 
field."'*'  But  a  statute  of  the  state  of  Texas  declaring 
it  to  be  a  misdemeanor  for  a  person  to  serve  as  a  con- 
ductor on  a  freight  train  without  having  had  two  years' 

")!.     Section  12.  supra.  138;    Missouri  Pac.  R.  Co.  v.  Cas- 

52.  Texas  &  P.  R.  Co.  v.  Rigs-  tie,  224  U.  S.  541,  56  L.  Ed.  875, 
by,  241  U.  S.  33,  60  L.  Ed.  874,  36  32  Sup.  Ct.  606;  Chicago,  R.  I.  & 
Sup.  Ct.  482;  Mondou  v.  New  P.  R.  Co.  v.  State,  219  U.  S.  453, 
York,  N.  H.  &  H.  R.  Co.,  22:^  U.  S.  55  L.  Ed.  290,  31  Sup.  Ct.  275. 

1.  56  L.  Ed.  327,  32  Sup.  Ct.  169,  54.      Northern    Pac.    R.    Co.    v. 

1  N.  C.  C.  A.  875,  38  L.  R.  A.   (N.  State  ex  rel.  Atkinson,  222   U.  S. 

S.)    44;     Northern   Pac.   R.   Co.   v.  370,  56  L.  Ed.  237,  32  Sup.  Ct.  160; 

State  ex  rel.  Atkinson,   222  U.   S.  Slate  v.  Missouri  Pac.  R.  Co.,  212 

370.  56  L.  Ed.  237,  32  Sup.  Ct.  IfiO.  Mo.  658,  111   S.  W.  500. 

53.  St.  Louis,  I.  M.  &  S.  R.  Co.  55.  Smith  v.  Alabama,  124  U. 
V.  State.  240  U.  S.  518,  60  L.  Ed.  S.  405,  31  L.  Ed.  508,  8  Sup.  Ct. 
776,  36  Sup.  Ct.  443:   Erie  R.  Co.  564. 

V.  New  York,  233  U.  S.  671,  58  L.  56.     Nashville,   C.  &  St.  L.  Ry. 

Ed.  1149,  34  Sup.  Ct.  756,  52  L.  R.  Co.  v.  Alabama.  128  U.  S.  96.  32 
A.    (N.   S.)    266,   Ann.   Cas.   1015n       I..  Ed.  352.  9  Sup.  Ct.  28. 


too  CoNTKOL  Over  C'ommon  I'akeiers  [^  36 

previous  experience  as  a  brakeman,  was  declared  to  be 
invalid  because  in  violation  of  the  Fourteenth  Amend- 
ment to  the  federal  Constitution."  However,  the  power 
of  the  state  under  the  commerce  clause  in  that  case 
was  not  involved.  An  enactment  of  the  legislature 
of  the  state  of  Arkansas  providing  for  "full  crews" 
on  trains,  including  those  used  in  moving  interstate 
traffic,  was  held  not  to  be  a  violation  of  the  commerce 
clause  as  Congress  had  not  acted  upon  the  same  sub- 
ject matter.^^ 

§  37.  Interstate  Messages  by  Telegraph  Prior  to 
Amendment  of  1910  to  Act  to  Regulate  Commerce.  Be- 
fore the  amendment  of  1910  to  the  Interstate  Commerce 
Act  including  telegraph,  telephone  and  cable  companies, 
many  state  statutes  governing  the  duties  of  telegraph 
companies  as  to  interstate  messages,  were  held  to  be 
valid. ^°  In  a  leading  case,  the  Western  U.  Tel.  Co.  v. 
James,^"  a  Georgia  act,  imposing  a  penalty  for  a  failure 
to  exercise  due  diligence  in  the  delivery  of  a  telegram, 
was  held  not  to  be  an  interference  with  interstate  com- 
merce even  as  to  messages  sent  from  points  without 
the  state  to  points  within  the  state  of  Georgia,  for  the 
reason  that  no  attempt  was  made  to  enforce  the  provi- 
sion of  the  statute  beyond  the  limits  of  the  state.  Like- 
wise a  state  statute  requiring  prompt  delivery  of  mes- 
sages and  permitting  a  recovery  for  all  damages  due 
to  negligence  in  transmission  or  delivery,  was  held  to 
be  valid  as  to  messages  sent  from  a  point  in  that  state 

57.  Smith  v.  State,  233  U.  S.  Western  U.  Tel.  Co.  v.  James,  90 
63C.  58  L.  Ed.  1129,  34  Sup.  Ct.  Ga.  254,  16  S.  E.  83;  Postal  Tel. 
681,  L.  R.  A.  1915r)  677,  Ann.  Cas.  Cable  Co.  v.  Umstadter,  103  Va. 
1915D  420.  742,  2  Ann.  Cas.,  511,  50  S.  E.  259; 

58.  Chicago,  R.  I.  &  P.  R-  Co.  v.  ^^estern  U.  Tel.  Co.  v.  PoweU.  94 
State,  219  U.  S.  453,  55  L.  Ed.  290,  ^^  368,  26  S.  E.  828;  Western 
31  Sup.  Ct.  275.  The  same  con-  ^  ^^^  ^^  ^  ^^.^^^^^  ,^  ^^  ^^^^ 
elusion  was  reached  in  the  later  ^^  ^^^^^^^  ^  ^^^  ^^ 
caseofSt^Louis.I.M^&S.R.Co.  ^^  ^^  ^^^  ^^ 
V.  State,  240  U.  S.  518.  60  L.  Ed.  •'      '              „    „„„ 

776,  36  sup.  Ct.  443.  ^^P-  ^lO.  18  S.  E.  280. 

59.  Western  U.  lei.  Co.  v.  60.  162  U.  S.  650,  40  L.  Ed. 
Bates,   93   Ga.   352,   20   S.   E.   639;        1105,  16  Sup.  Ct.  934. 


§  '57  I  State  and  F^'ederal  Powers  101 

to  points  in  another  state."'  In  a  later  case,  the  nation- 
al Siii»r('mo  Conrt  held  that  a  statute  of  the  state  of 
Virginia  exacting  a  penalty  for  the  failure  to  deliver 
a  message,  was  valid  as  to  a  telegram  sent  from  a  city 
in  that  state  to  New  York,  where  it  appeared  that  the 
negligence  in  transmission  occurred  in  Virginia;'''^  but 
the  court  indicated  that  such  a  statute  was  valid  as 
to  interstate  messages  only  in  the  absence  of  legislation 
by  Congress. 

On  the  other  hand  the  national  Supreme  Court 
held  that  a  statute  of  Indiana  requiring  the  transmis- 
sion and  delivery  of  messages  was  invalid  as  to  a  de- 
livery in  Iowa  of  a  message  sent  from  the  state  of 
Indiana.®^  Again,  a  statute  of  South  Carolina  permit- 
ting damages  for  mental  anguish  arising  from  the  fail- 
ure of  a  telegraph  company  to  deliver  a  message,  was 
declared  to  be  invalid  under  the  commerce  clause  as 
to  a  telegram  sent  from  a  city  in  South  Carolina  to 
AVashington,  D.  C,  the  act  being  jjlainly,  it  was  held, 
an  attempt  to  regulate  interstate  commerce."  A  mes- 
sage sent  from  a  point  in  Virginia  to  a  person  on  board 
a  government  vessel  lying  in  the  Norfolk  Navy  Yard, 
and  which  was  not  delivered  on  account  of  negligence 
of  the  telegraph  company,  did  not  create  a  penal  act 
within  the  provisions  of  the  statute  of  A^irginia,  as  the 
state  law,  it  was  held,  could  have  no  extra-territorial 
force,  the  Norfolk  Navy  Yard  being  under  the  exclusive 
control  of  Congress.*^^  It  is  difficult  to  see  the  reason 
for  the  distinctions  made  in  some  of  these  cases,  but 
in  all  of  them  the  court  expressly  or  impliedly  recog- 
nized the  rule  that  state  laws  as  to  interstate  messages 
would  be  invalid  if  Congress  should  legislate  concerning 

61.  Western  U.  Tel.  Co.  v.  Com-      dleton,    122    U.    S.    347,    30   L.    Ed. 
mercial  Mining  Co.,  218  U.  S.  40G,      1187,  7  Sup.  Ct.  1126. 

54  L.  Ed.  1088.  31  Sup.  Ct.  59,  36  64.      Western     U.     Tel.     Co.     v. 

L.    R.    A.     (N.    S.)     220,    21    Ann.  Brown,   234    U.   S.   542,   58    L.    Ed. 

Cas.   815.  1457,   34   Sup.  Ct.  955,   5   N.  C.  C. 

62.  Western  U.  Tel.  Co.  v.  Cro-  A.  1024. 

vo,  220  U.   S.   364,  55  L.   Ed.  498,  65.       W^estern     V.     Tel.     Co.     v. 

31   Sup.  Ct.  399.  Chiles,   214   U.    S.   274,    53   L.    Ed. 

63.  Western  U.  Tel.  Co.  v.  Pen-      994,  29  Sup.  Ct.  613. 


102  CoNTEOL  Over  Common  (*arkiers  [§  37 

the  same  subject  matter.  In  the  enactment  of  the  amend- 
ment including  these  companies  as  carriers  under  the 
Interstate  Commerce  Act,  Congress  exercised  its  poten- 
tial power' over  them  and  such  statutes  of  the  state  are 
now,  so  far  as  interstate  messages  are  concerned,  in- 
valid/'^' In  the  Virginia  cases,  cited,  it  was  held  that 
by  the  passage  of  the  Interstate  Commerce  Act  as 
amended  in  1910,  Congress  had  occupied  the  field  of 
liability  of  telegraph  companies  as  to  interstate  mes- 
sages so  that  state  statutes  providing  penalties  for  fail- 
ure to  transport  messages  with  diligence  were  applicable 
only  to  intrastate  business. 

§  38.  State  Laws  Regulating  Interstate  and  For- 
eign Messages  of  Telegraph,  Telephone,  and  Cable 
Companies,  Invalid.  Since  the  inclusion  by  the  amend- 
ment of  1910  to  the  Interstate  Commerce  Act  of  tele- 
graph, telephone  and  cable  companies,  whether  wire 
or  wireless,  engaged  in  sending  messages  from  one 
state  to  another  and  to  foreign  countries,  all  state  laws 
regulating  the  receipt  and  delivery  of  interstate  and 
foreign  telegrams  and  telephone  messages  are  void, 
for  the  reason  that  Congress  has  occupied  the  entire 
field  and  has  taken  complete  control  of  the  regulation 
of  such  companies  as  to  all  messages  and  telegrams 
capable  of  being  included  under  national  control.  The 
power  of  the  states  to  legislate  with  reference  to  the 
same  subject  matter,  has  been  suspended.®^  A  state 
law,  therefore,  prescribing  that  any  provision  in  a  con- 

66.     Western     U.     Tel.     Co.     v.  67.    Western  U.  Tel.  Co.  v.  Hold- 

Ccmpton,  114  Ark.  193,  169  S.  W.  er,   117  Ark.   210,   174   S.  W.   552; 

946;    Western  U.  Tel.  Co.  v.  First  Western   U.    Tel.   Co.   v.    Simpson, 

National   Bank   of   Berryville,   116  117  Ark.  156,  174  S.  W.  232;  West- 

Va.    1009,   33   S.   E.   424;     Western'  orn   U.   Tel.   Co.   v.    .Johnston,   115 

U.    Tel.    Co.    V.    Bilisoly,    116    Va.  Ark.  564,  171  S.  W.  859;   Western 

56£,  82  S.  E.  91;     Norfolk  Truck-  U.  Tel.  Co.  v.  Comptou,  114,  Ark. 

ers'  Exch.  v.  Norfolk  Southern  R.  193,   169    S.   W.   946;    Western   U. 

Co.,  116  Va.  466,  82  S.  E.  92.  Con-  Tel.  Co.  v.  First  National  Bank  of 

tra:      Bailey   v.   Western   U.   Tel.  Berryville,  116  Va.  1009,  83  S.  E. 

Co.,  Tex.  Civ.  App.  ,  171  424;      Western     U.     Tel.     Co.     v. 

S.  W.  g:29.  Bilisoly,  116  Va.  562,  82  S.  E.  91. 


§  38] 


►State  and  h'KDKHAi.  Powers 


lua 


tract  stiinilating  for  notice  or  (Icniaiid  other  tliaii  .<ach 
as  may  1k'  provided  l)y  law  as  a  condition  precedent 
to  establish  any  claim  or  demand,  siiali  be  void,  does 
not  control  as  to  an  interstate  telegram  which  was  sent 
pursuant  to  a  contract  with  a  telegraph  comi)any  pro- 
viding, among  other  things,  that  the  company  shall 
not  be  liable  for  damages  in  any  case  when  the  claim 
was  not  presented  in  writing  within  sixty  days  after 
the  message  was  filed  with  the  company.  Whether  such 
a  regulation  as  to  interstate  messages  is  void  or  valid 
is  a  question  solely  for  the  Interstate  Commerce  Com- 
mission to  determine/'^ 


68.  Gardner  v.  Western  U.  Tel. 
Co.,  145  C.  C.  A.  399;  231  Fed. 
405.  Judge  Garland,  in  this  case, 
said:  "We  have  e.xamintd  the  cases 
cited  by  plaintiff  and  find  them  to 
be  cases  which  arose  prior  to  the 
amendment  of  the  Interstate  Com- 
merce Law  of  June  18,  1910,  or 
they  are  cases  in  which  state  legis- 
lation only  indirectly  burdened  in- 
terstate commerce.  Since  tlie 
amendement  above  referred  to  we 
find  no  conflict  in  the  authorities 
in  cases  where  the  facts  are  sim- 
ilar to  the  one  at  bar.  Congress 
has  taken  possession  of  the  field 
of  interstate  commerce  by  tele- 
graph and  it  results  that  the 
power  of  the  states  to  legislate 
with  refe  ence  thereto  has  been 
suspended.  The  great  necessity 
that  commerce  between  the  states 
should  be  free  from  such  inter- 
ference applies  in  a  marked  degree 
to  interstate  commerce  by  tele- 
graph. If  the  regulation  which 
is  pleaded  in  bar  in  this  suit 
should  be  held  valid  in  Kansas, 
and  void  lU  Oklahoma,  and  the 
illustration  may  be  extended  to 
all  the  states  of  the  Union,  then 
the  power  of  the  United  States 
to     regulate     commerce     between 


the  states  in  relation  to  telegraph- 
ic business  would  not  only  be 
directly  interfered  with,  but  de- 
stroyed. We  think  that  the  stip- 
ulation in  the  record  that  ]\Ir. 
Lingafelt  if  present  would  testi- 
fy to  the  facts  therein  stated 
shows  that  the  Company  has  doae 
all  that  can  be  required  of  it  in 
regard  to  the  filing  of  its  schedule 
of  rates,  regulations,  and  practices. 
We  are  therefore  of  the  opinion 
that  Congress  having  taken  pos- 
session of  the  field  of  interstate 
commerce  by  telegraph,  the  pro- 
vision of  the  Constitution  of  Okla- 
homa relied  upon  has  become 
inoperative  for  the  purpose  of 
striking  down  the  regulation  in 
question.  Whether  the  regulation 
is  a  reasonable  one  or  not  is  in 
our  judgment  a  question  for  the 
Interstate  Commerce  Commission 
(0  determine.  IMitchel.  Coal  & 
Coke  Co.  V.  Pa.  R.  Co.,  230  U.  S. 
247.  33  Sup.  Ct.  916,  57  L.  Ed.  1472; 
Chicago  &  Alton  Ry.  Co.  v.  Kirby. 
225  U.  S.  155,  32  Sup.  Ct.  G48,  56 
[..  Ed.  1033,  Ann.  Cas.  1914A.  501; 
Tex.  &  Pac.  Ry.  Co.  v.  Abilene 
Cotton  Oil  Co..  204  U.  S.  426,  27 
Sup.  Ct.  350.  51  L.  Ed.  553,  9  Ann. 
Cas    1075.' 


104  CoNTEOL  Over  Common  Caeriers  [§  39 

§  39.  States  May  Not  Regulate  "Ticker  Service" 
of  Interstate  Telegraph  Companies.  As  the  regulations 
and  control  of  telegraph  messages  from  one  state  to 
another,  has  been  placed  under  the  jurisdiction  of  the 
Interstate  Commerce  Commission,  the  sending  of  market 
quotations  from  a  city  in  one  state  to  a  city  in  an- 
other, constitutes  interstate  commerce  within  its  control. 
Furthermore,  the  distribution  by  a  telegraph  company, 
after  receiving  messages  from  another  state  containing 
such  quotations,  by  what  is  known  as  the  "ticker  serv- 
ice" to  their  patrons  in  the  same  city,  it  has  been  held, 
cons^titutes  interstate  commerce,  and  is  not,  therefore, 
subject  to  regulation  by  the  states.**^  "It  is  enough  that 
in  our  opinion,"  said  Mr.  Justice  Holmes,  for  the  court, 
in  the  case  last  cited,  "the  transmission  of  the  quota- 
tions did  not  lose  its  character  of  interstate  commerce 
until  it  was  completed  in  the  brokers'  offices  and  that 
interference  with  it  was  of  a  kind  not  permitted  to  the 
States.  The  supposed  analogy  that  has  prevailed  is  that 
of  a  receiver  of  a  package  breaking  bulk  and  selling 
at  will  in  retail  trade.  But  it  appears  to  us  misleading. 
We  also  think  it  unimi3ortant  that  the  contracts  between 
the  Exchange  and  the  Telegraph  Companies  emphasize 
the  element  of  quasi-s&le  for  a  lump  sum  and  leave  it 
to  the  interest  of  the  Telegraph  Companies  to  find  sub- 
scribers. Neither  that  nor  the  intervention  of  an  oper- 
ator, or  of  another  company,  are  in  the  least  degree  con- 
clusive. Unlike  the  case  of  breaking  bulk  for  subse- 
quently determined  retail  sales,  in  these  the  ultimate 
recipients  are  determined  before  the  message  starts  and 
have  been  accepted  as  the  contemplated  recipients  by 
the  Exchange.  It  does  not  matter  if  they  have  no  con- 
tract with  the  Exchange,  directly.  It  does  not  matter 
that  if  the  Telegraph  Companies  did  not  deliver  to  any 
given  one  the  Exchange  could  not  complain.  If  the  nor- 
mal, contemplated  and  followed  course  is  a  transmission 
as  continuous  and  rapid  as  science  can  make  it  from 
Exchange  to  broker's  office  it  does  not  matter  what  are 

69.     Western  U.  Tel.  Co.  v.  Fos-      38   Sup.   St.   438,  decided  May   20, 
ter, U.  S. ,  62  L.  Ed. ,       1918. 


§  .'I!*  I  Sta'ik  AM)  Kkdkkat.  Powkhs  105 

tlio  stages  or  how  little  they  are  f-eeiu-ed  by  covenant  or 
bond.  Thus  lumber  inirchased  in  Texas  for  the  purpose 
of  filling-  foreign  orders  was  held  to  be  carried  in  inter- 
state commerce,  although  no  contract  prevented  the  pur- 
chaser from  giving  it  a  different  destination.  Texas  & 
New  Orleans  R.  R.  Co.  v.  Sabine  Tram.  Co.,  227  U.  S. 
ni,  126,  .3.1  Sup.  Ct.  229,  57  L.  Ed.  442.  JVactice,  in- 
tent and  the  typical  course,  not  title  or  niceties  of  form, 
were  recognized  as  determining  the  character,  and  other 
cases  to  the  same  effect  were  cited.  The  principle  was 
reaffirmed  in  Railroad  Commission  of  Louisiana  v.  Texas 
&  Pacific  Ry.  Co.,  229  U.  S.  3.S6,  .33  Sup.  Ct.  837,  57  L. 
Ed.  1215;  and  is  too  well  settled  to  need  to  be  further 
sustained.  Western  Oil  Refining  Co.  v.  Lipscomb,  224 
U.  S.  346,  .349,  37  Sup.  Ct.  623,  61  L.  Ed.  1181.  See 
Swift  &  Co.  V.  United  States,  196  U.  S.  375,  398,  399, 
25  Sup.  Ct.  276,  49  L.  Ed.  518.  It  is  admitted  that  the 
transmission  from  New  York  to  Massachusetts  by  the 
Telegraph  Company  was  interstate  commerce.  If  so  it 
continued  such  until  it  I'eached  'the  point  where  the 
parties  originally  intended  that  the  movement  should 
finally  end.'  Illinois  Central  R.  R.  Co.  v.  Louisiana  R. 
R.  Commission,  236  U.  S.  157,  163,  35  Sup.  Ct.  275,  59 
L.  Ed.  517.  If  the  transmission  of  the  quotations  is 
interstate  commerce  the  order  in  question  cannot  be 
sustained.  It  is  not  like  the  requirement  of  some  in- 
cidental convenience  that  can  be  afforded  without  seri- 
ously impeding  the  interstate  work.  It  is  an  attempt 
to  affect  in  its  very  vitals  the  character  of  a  business 
generally  withdrawn  from  state  control — to  change  the 
criteria  by  which  customers  are  to  be  determined  and  so 
to  change  the  business.  It  is  suggested  that  the  State 
gets  the  power  from  its  power  over  the  streets  which  it 
is  necessary  for  the  telegraph  to  cross.  But  if  we  as- 
sume that  the  plaintiffs  in  error  under  their  present 
charters  could  be  excluded  from  the  streets,  the  con- 
sequence would  not  follow.  Acts  generally  lawful  may 
become  unlawful  when  done  to  accomplish  an  unlawful 
end,  United  States  v.  Reading  Co.,  226  U.  S.  324,  357, 
33  Su)).  Ct.  90,  57  L.  Ed.  243,  and  a  constitutional  i^ower 


106  CnxTKOT.  Over  Common  (^AHHiKPis  [§  39 

cannot  be  used  by  way  of  condition  to  attain  an  un- 
constitutional result.  Western  Union  Telegraph  Co.  v. 
Kansas,  216  U.  S.  1,  30  Sup.  Ct.  190,  54  L.  Ed.  355;  Pull- 
man Co.  V.  Kansas,  216  U.  S.  56,  30  Sup.  Ct.  232,  54  L. 
Ed.  378;  Sioux  Remedy  Co.  v.  Cope,  235  U.  S.  197,  203, 
35  Sup.  Ct.  57,  59  L.  Ed.  193.  The  regulation  in  ques- 
tion is  quite  as  great  an  interference  as  a  tax  of  the 
kind  that  repeated  decisions  have  held  void.  It  cannot 
be  justified  under  that  somewhat  ambiguous  term  of 
police  powers.  Western  Union  Telegraph  Co.  v.  Pend- 
leton, 122  U.  S.  347,  359,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187; 
Leisy  v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct.  681,  34  L. 
Ed.  128;  Savage  v.  Jones,  225  U.  S.  501,  520,  32  Sup. 
Ct.  715,  56  L.  Ed.  1182;  Western  Union  Telegraph  Co.  v. 
Brown,  234  U.  S.  542,  547,  34  Sup.  Ct.  955,  58  L.  Ed.  1457. 
Without  going  into  further  reasons  we  are  of  opinion 
that  the  decree  of  the  Supreme  Judicial  Court  must  be 
reversed." 

§  40.  State  and  Municipal  Regulations  of  the  Inter- 
state Business  of  Express  Companies.  Neither  the 
states  nor  municipalities  have  the  power  to  require  that 
a  license  be  obtained  as  a  condition  precedent  to  carry- 
ing on  interstate  commerce  for  the  exercise  of  the  re- 
serve police  power  of  the  states  to  the  extent  of  im- 
posing a  direct  burden  upon  that  commerce,  is  invalid. '^° 
Besides  Congress  has  exercised  its  authority  and  has 
provided  its  own  scheme  of  regulation  over  express 
companies  doing  interstate  business  by  the  enactment 
of  the  Hepburn  Amendment  to  the  Interstate  Com- 
merce Act.'^^  Under  this  amendment,  express  companies 
are  under  the  exclusive  control  of  Congress  and  the 
Interstate  Commerce  Commission  as  to  all  their  inter- 
state shipments.  A  municipal  ordinance,  therefore,  re- 
quiring a  license  of  all  express  companies,  a  bond  for 
each  vehicle  license  conditioned  for  tlie  safe  and  prompt 
delivery  of  all  express  packages  and  requiring  all  vehic- 

70.     Crutcher  v.   Kentucky,   141  71.    Barrett  v.  City  of  New  York, 

U.  S.  47,  35  L.  Ed.  649,  11  Sup.  232  U.  S.  14,  58  L.  Ed.  483,  34  Sup. 
Ct.   851.  Ct.    203. 


§  41]  State  axd  Fkdkkal  Powkhs  107 

Ics  of  siicli  cairicrs  io  Ix'  innikccl  witli  official  numbers, 
was  lield  to  be  invalid  as  applied  to  the  interstate  busi- 
ness of  exi)i-ess  eom])anies  and  the  wagons  and  driveis 
enii)l()yed  hy  Ihcni  in  such  coninierce.'"  For  the  same 
reason  a  state  statute  eoni])elling-  express  companies 
to  deliver  interstate  packages  at  the  residences  and 
l)laces  of  business  was  held  to  l)e  void."' 

§  41.  Valid  Municipal  Regulations  of  Drivers  on 
Streets  Carrying-  Interstate  Traffic.  Municipal  corpora- 
tions may  ado])t  and  enfoiee  regulations  to  insure  care- 
ful driving  over  city  streets;  but  when  provisions  of 
this  nature  affect  the  movement  of  interstate  traffic, 
as  for  instance,  the  drivers  of  express  wagons  contain- 
ing interstate  shipments,  they  must  be  reasonable  and 
must  not  arbitrarily  restrict  facilities  of  interstate  com- 
merce.'* 

72.  Barrett  v.  City  of  New  York,  also  In  re  Express  Rates,  Prac- 
232  U.  S.  14,  58  L.  Ed.  483.  34  Sup.  tices,  Accounts  and  Revenues,  24 
Ct.  203.  I    C.  C.   380. 

73.  State  ex  rel.  v.  Adams  Exp.  74.  Barrett  v.  City  of  New 
Co.,  171  Ind.  138,  19  L.  R.  A.  (N.  York,  232  U.  S.  14,  58  L.  Ed.  483, 
S.)    93,    85    N.    E.    337,    966.      See      34  Sup.  Ct.  203. 


CHAPTER  III. 

Federal  and  State  Control  of  Carriers  During  Times 

OF  War. 

Sec.  42.  Powers  of  Congress  over  Carriers  during  times  of  Peace  and 
War  Distinguished. 

Sec.  43.  President  Empowered  to  Assume  Control  of  Transportation 
Systems  in  Time  of  War. 

Sec.  44.  Proclamation  Assuming  Control  of  Railroads  Under  Forego- 
ing Provisions. 

Sec.  45.  National  Statute  Providing  for  Federal  Control  and  Compen- 
sation of  Carriers  During  the  Period  of  War  with  Germany. 

Sec.  46.  Purpose  of  Congress  in  Enacting  the  Act  Providing  for  Fed- 
eral Control  During  War. 

Sec.  47.  Effect  of  National  Statute  Providing  for  Federal  Control  up- 
on other  Laws,  Federal  and  State. 

Sec.  48.  President  Authorized  to  Initiate  Rates  and  Charges  for  Trans 
portation   During  Period   of  Federal  Control. 

Sec.  49.  Actions  at  Law  or  Suits  in  Equity  may  be  Brought  by  and 
Against  Carriers  under  Federal  Control. 

Sec.  50.  Penalty  for  Violations  of  the  Provisions  of  the  Federal  Con- 
trol Act. 

Sec.  51.  When  Federal  Control  of  Transportation  System  Under  the 
Statute  shall  Terminate. 

§  42.  Powers  of  Congress  over  Carriers  During 
Times  of  Peace  and  War  Distinguished.  During-  times 
of  peace,  the  federal  government  possesses  no  control 
over  carriers  operating  within  the  boundaries  of  the 
several  states  except  such  as  is  granted  to  Congress 
under  the  commerce  clause.  The  national  legislative 
body  has,  therefore,  no  power  to  regulate  or  control 
carriers  engaged  exclusively  in  intrastate  commerce  or 
the  intrastate  business  of  interstate  carriers.^  The 
federal  government  cannot  take  over,  regulate  or  con- 
trol carriers  engaged  solely  in  moving  intrastate  com- 
merce during  times  of  peace  without  an  amendment 
to  the  national  Constitution.  But  in  times  of  war,  no 
such  limitations  upon  the  powers  of  Congress  exist; 
for  the   Constitution  i)rovides  that   Congress  may   de- 

1.    Chapter  2. 

(108) 


§  44]  FEr)r-:nAi,  ()i>khation  During  War  109 

elan*  war  and  ciincl  ;ill  laws  wliicli  sliall  be  necessary 
and  pi'opor  to  cany  on  tlie  war.  The  power  to  declare 
war  carries  with  it  as  an  incident  thereto  and  insepar- 
a])Ie  tlierefrom  llie  li^lil  to  prosecute  the  war  by  all 
the  means  known  to  and  recognized  by  civilized  na- 
tions." If,  therefore,  the  control  or  regulation  of  car- 
riers, whether  intrastate  or  interstate,  is  necessary  or 
proper  for  carrying  on  a  war,  the  federal  government, 
through  Congress,  may  own,  operate  or  regulate  them 
witliout  regard  to  the  limitations  of  tlie  commerce 
clause. 

§  43.  President  Empowered  to  Assume  Control 
of  Transportation  Systems  in  Time  of  War.  By  an 
act  of  Congress  approved  August  29,  191G,  the  Presi- 
dent was  empowered  in  time  of  war,  through  the  Secre- 
tary of  War,  to  take  possession,  and  assume  control  of 
any  system  or  systems  of  transportation,  or  any  part 
thereof,  and  to  utilize  the  same,  to  the  exclusion,  as 
far  as  may  be  necessary,  of  all  other  traffic  thereon, 
for  the  transfer  or  transportation  of  troojis,  war  mate- 
rial, and  equipment,  or  for  such  other  purposes  connect- 
ed with  emergency  as  may  be  needful  or  desirable.^ 

§  44.  Proclamation  Assuming  Control  of  Rail- 
roads under  Foregoing  Provision.  Pursuant  to  the 
power  given  the  President   by  the  Act  of  August   29 

2.  Norwich  &  W.  R.  Co.  v.  over  the  railroads  for  war  pur- 
.lohnson,  15  Wall.  (U.  S.)  195,  21  poses  and  that  no  authority  was 
L.  Ed.  178;  Dooley  v.  Smith.  i:5  granted  therein  for  the  raUroais 
Wall.  (U.  S.)  604,  20  L.  Ed.  547;  ^^  ^^  ^p^^^^^^j  ^^  ^  ^.^^^^^^  ^^^ 
Legal  Tender  Cases,  11.  Wall  (U.  ^^^j  ^^  railroads  or  by  the  Secre- 
S.)  457,  20  L.  Ed.  287;  Tyler  v. 
Defrees,  11  WaU.  (U.  S.)  331, 
20  L.  Ed.  161;  Miller  v.  United 
States,  11  Wall.  (U.  S.)  268.  20  when  decided  (.March  2,  1918)  was 
L.  Ed.  135;  United  States  v.  Alex-  destroyed  by  the  Federal  Control 
ander,  2  Wall.  (U.  S.)  404,  17  L.  Act  approved  March  21,  1918;  for 
Ed.  915;  Prize  Cases,  2  Black  (U.  section  8  of  the  latter  provides 
S.)    635    17  L.   Ed.   459.  ^^^^  ^^^  President  may  execute  any 

3.  In  Muir  v.  Louisville  &  N.  of  the  powers  therein  and  thereto- 
R.  Co.,  247  Fed.  888,  the  court  fore  granted  him  with  relation  to 
held  that  by  the  passage  of  this  federal  control  through  such  agen- 
act  Congress  intended  for  the  War  cles  as  he  may  determine.  See 
Department  and  no  other  to  tako  sec.  45  and  appendix  D,  infra. 


tary  of  the  Treasury.     The  effect 
of   this   decision,   even    if   correct 


110  Control  Over  Common  Carriers  [§  44 

1916,  President  Wilson,  on  December  28,  1917,  took 
possession  of  and  assumed  control  of  all  railroad  systems 
of  transportation  within  the  boundaries  of  the  United 
States.  The  proclamation  is  as  follows:  ''Whereas 
the  Congress  of  the  United  States,  in  the  exercise  of 
the  constitutional  authority  vested  in  them,  by  joint 
resolution  of  the  Senate  and  House  of  Representatives 
bearing  date  April  6,  1917,  resolved:  'That  the  state 
of  war  between  the  United  States  and  the  Imperial 
German  Government  which  has  thus  been  thrust  upon 
the  United  States  is  hereby  formally  declared;  and 
that  the  President  be,  and  he  is  hereb}^  authorized 
and  directed  to  employ  the  entire  naval  and  military 
forces  of  the  United  States  and  the  resources  of  the 
Government  to  carry  on  war  against  the  Imperial  Ger- 
man Government;  and  to  bring  the  conflict  to  a  suc- 
cessful termination  all  of  the  resources  of  the  country 
are  hereby  pledged  by  the  Congress  of  the  United 
States.'  And  by  joint  resolution  bearing  date  of  De- 
cember 7,  1917,  resolved:  'That  a  state  of  war  is  here- 
by declared  to  exist  between  the  United  States  of 
America  and  the  Imperial  and  Royal  Austro-Hun- 
garian  Government;  and  that  the  President  be,  and  he 
is  hereby,  authorized  and  directed  to  employ  the  entire 
naval  and  military  forces  of  the  United  States  and  the 
resources  of  the  Government  to  carry  on  war  against 
the  Imperial  and  Royal  Austro-Hungarian  Govern- 
ment; and  to  bring  the  conflict  to  a  successful  termina- 
tion all  the  resources  of  the  country  are  hereby  pledged 
by  the  Congress  of  the  United  States.'  And  whereas 
it  is  provided  by  section  1  of  the  act  approved  August 
29,  1916,  entitled  'An  act  making  appropriations  for 
the  support  of  the  Army  for  the  fiscal  year  ending- 
June  30,  1917,  and  for  other  purposes,'  as  follows:  'The 
President  in  time  of  war  is  empowered,  through  the 
Secretary  of  the  War,  to  take  possession  and  assume 
control  of  any  system  or  systems  of  transportation,  or 
any  part  thereof,  and  to  utilize  the  same,  to  the  ex- 
clusion, as  far  as  may  be  necessary,  of  all  other  traffic 
thereon,  for  the   transfer  or  transportation   of  troops, 


§  44]  Fedkijal  Opehation  I)uhin«,  Wau  111 

war   material,   and    0(|nii)iii('iit,   or   for   siicli   other  pur- 
poses coiineetcd  with  the  enier^enoy  as  may  be  needful 
or  desirable.'     And  whereas  it  has  now  Ijeeonie  neces- 
sary in    tlie   national    defense   to    take   possession    and 
assume    control    of    certain    systems    of    trans]  )ort  at  ion 
and  to  utilize  the  same,  to  tlic  exclusion,  as  fai-  as  may 
be  necessary,  of  other  than  war  traffic  thereon,  for  the 
trans]iortation  of  troops,  war  material,  and  e(|ui]»nient 
therefor,  and  for  other  needful  and  desira])le  inir])0scs 
connected  with  the  prosecution  of  the  war:    Now,  there- 
fore, I,  AVoodrow  Wilson,  President  of  the  United  States, 
under  and  by  virtue  of  the  powers  vested  in  me  by  the 
foregoing  resolutions  and  statute,  and  l)y  virtue  of  all 
other  powers  thereto  me  enabling,  do  hereby,  through 
Newton  D.  Baker,   Secretary  of  War,  take   possession 
and  assume  control  at  12  o'clock  noon  on  the  28th  day 
of  December,  1917,  of  each  and  every  system  of  trans- 
portation and  the  appurtenances  thereof  located  wholly 
or   in   part   within   the   boundaries   of   the    continental 
United  States  and   consisting  of  railroads  and   owned 
or   controlled    systems  of  coastwise   and   inland   trans- 
portation  engaged   in   general   transportation,   whether 
operated  by  steam  or  by  electric  power,  including  also 
terminals,    terminal    companies,   and    terminal    associa- 
tions, sleeping  and  parlor  cars,  private  cars  and  private 
car   lines,    elevators,    w^arehouses,   telegraph    and    tele- 
phone lines,  and  all  other  equipment  and  appurtenances 
commonly  used  upon  or  operated  as  a  part  of  such  rail 
or  combined  rail-and-water  systems  of  transportation; 
to  tlie  end  tliat  such  systems  of  transportation  be  uti- 
lized   for    the    transfer    and    transportation    of    troops, 
war  material,  and  ecpiipment,  to   the   exclusion   so  far 
as  may  be  necessary  of  all   other  traflic  thereon;   and 
that  so  far  as  such  exclusive  use  be  not  necessary  or 
desirable   such    systems  of  transportation   be   operated 
and  utilized  in  the  performance  of  such  other  services 
as  the  national  interest  may  require  and  of  the  usual 
and  ordinary  business  and  duties  of  common  carriers. 
It  is  hereby  directed  that  the  possession,  control,  opera- 
tion,   and    utilization    of    sucli    ti-ausportation    systems, 


112  CoNTHOL  Over  Common  Cakeiees  [§  "•-^ 

hereby  by  me  imdertaken,  shall  be  exercised  by   and 
through  William  G.  McAdoo,  who  is  hereby  appointed 
and   designated   Director  General   of  Railroads.     Said 
director   may   perform   the   duties  imposed   npon  him, 
so    long    and    to    such    extent   as    he    shall    determine, 
through  the  boards  of  directors,  receivers^  officers,  and 
employees    of    said    systems    of    transportation.      Until 
and  except  so  far  as  said  director  shall  from  time  to 
time  by   general   or   special   orders   otherwise   provide, 
the  boards  of  directors,  receivers,  officers,  and  employees 
of  the  various  transportation  systems  shall  continue  the 
operation  thereof  in  the  usual  and  ordinary  course  of 
the  business  of  common  carriers,  in  the  names  of  their 
respective    companies.      Until    and    except    so    far    as 
said    director    shall    from    time    to   time    otherwise    by 
general    or   special   orders  determine,   such   systems   of 
transportation  shall  remain  subject  to  all  existing  stat- 
utes and  orders  of  the  Interstate  Commerce  Commission 
and  to  all  statutes  and  orders  of  regulating  commissions 
of  the  various   States  in   which   said    systems   or   any 
part  thereof  may  be  situated.     But  any  order,  general 
or  special,  hereafter  made  by  said  director  shall  have 
paramount   authority   and  be   obeyed   as   such.     Noth- 
ing herein  shall  be  construed  as  now  affecting  the  pos- 
session,  operation,   and   control  of   street   electric  pas- 
senger  railways,   including   railways   commonly    called 
interurbans,  whether  such  railways  be  or  be  not  owned 
or  controlled  by   such  railroad  companies   or   systems. 
By  subsequent  order   and   proclamation,   if   and   when 
it   shall   be   found   necessary    or   desirable,    possession, 
control,  or  operation  may  be  taken  of  all  or  any  part  of 
such   street   railway    systems,   including    subways    and 
tunnels;    and   by    subsequent    order    and    proclamation 
possession,  control,  and  operation  in  whole  or  in  part 
may  also  be  relinquished  to  the  owners  thereof  of  any 
part  of  the  railroad  systems  or  rail  and  water  systems, 
possession  and  control  of  whicli   are  hereby  assumed. 
The  director  shall,  as  soon  as  may  be  after  having  as- 
sumed such  possession  and  control,  enter  upon  negotia- 
tions with  the  several  companies  looking  to  agreements 


<§.    44]  FeUKIUL    OPKIiATION    JJURING    WaK  113 

for  just  and  reasonable  compensation  for  tlie  possession, 
use,  and  control  of  their  respective  properties  on  the 
basis  of  an  annual  guaranteed  compensation  above 
accruing  depreciation  and  the  maintenance  of  llicii- 
]iroperties  equivalenl,  as  nearly  as  may  be,  to  the  ax'ci'a.ijc 
of  llie  net  opcialin^'  income  iliei-eof  for  the  tliree-yeai' 
])eiiod  ending  June  'M),  11)17,  Hie  resulls  of  such  negotia- 
tions to  be  reported  to  me  foi-  such  action  as  may  be 
appropriate  and  lawful.  But  nothing  herein  contained, 
expressed,  or  implied,  or  hereafter  done  or  suffered 
hereunder,  shall  be  deemed  in  any  way  to  impair  the 
rights  of  the  stockholders,  bondholders,  creditors,  and 
other  persons  having  interests  in  said  systems  of  trans- 
portation or  in  the  profits  thereof  to  receive  just  and 
adequate  co7)i]iensation  for  the  use  and  control  and 
operation  of  their  property  hereby  assumed.  Regulai- 
dividends  hitherto  declared  and  maturing  interest 
upon  bonds,  debentures,  and  other  ol)ligations  may 
be  paid  in  due  course;  and  such  regular  dividends  and 
interest  may  continue  to  be  paid  until  and  unless  the 
said  director  shall  from  time  to  time  otherwise  by 
general  or  special  orders  determine;  and,  subject  to 
the  approval  of  the  director,  the  various  carriers  may 
agree  upon  and  arrange  for  the  renewal  and  extension 
of  maturing  obligations.  Except  with  the  prior  written 
assent  of  said  director,  no  attachment  by  mesne  pro- 
cess or  on  execution  shall  be  levied  on  or  against  any 
of  the  property  used  by  any  of  said  transportation 
systems  in  the  conduct  of  their  business  as  common 
carriers;  but  suits  may  be  brought  by  and  against  said 
carriers  and  judgments  rendered  as  hitherto  until  and 
except  so  far  as  said  director  may,  by  general  or  special 
orders,  otherwise  determine.  From  and  after  12  o'clock 
on  said  28th  day  of  December,  1917,  all  transporta- 
tion systems  included  in  this  order  and  i^roclamation 
shall  conclusively  be  deemed  within  the  possession  and 
control  of  said  director  without  further  act  or  notice. 
But  for  the  purpose  of  accounting  said  possession  and 
control  shall  dale  fioni   li'  o'clock  midnight  on  Decem- 

1    (ViMtri'l    CanicrR    s 


114  Control  Over  Common  Cahkiers  [§  44 

ber  31,  1917.  In  witness  whereof  I  have  hereunto  set 
my  hand  and  caused  the  seal  of  the  United  States  to 
be  affixed.  Done  by  the  President,  through  Newton 
D.  Baker,  Secretary  of  War,  in  the  District  of  Columbia, 
this  26th  day  of  December,  in  the  year  of  our  Ijord 
one  thousand  nine  liundred  and  seventeen,  and  of  the 
independence  of  the  United  States  the  one  hundred  and 
forty-second." 

§  45.  National  Statute  Providing  for  Federal  Con- 
trol and  Compensation  of  Carriers  During  the  Period 
of  War  v/ith  Germany.  Following  the  President's 
proclamation  by  which  he  took  possession  of  and  as- 
sumed control  of  all  systems  of  transportation  within 
the  boundaries  of  the  United  States,  Congress  enacted 
a  statute  known  as  the  Federal  Control  Act  which 
was  approved  by  the  President  on  March  21,  1918.* 
The  leading  object  in  the  enactment  of  this  statute 
was  to  provide  the  means  and  method  of  compensating 
the  carriers  for  the  use  of  their  property  during  the 
period  of  federal  control  which,  by  the  provisions 
of  the  Act,  is  limited  to  and  during  the  period  of  the 
war  and  for  a  reasonable  time  thereafter,  not  to  exceed 
one  year  and  nine  months  following  the  date  of  the 
ratification  of  the  Treaty  of  Peace. 

The  first  section  of  the  statute  provides  that  the 
President,  having  in  time  of  war  taken  over  the  posses- 
sion, use,  control  and  operation  of  certain  railroads  and 
systems  of  transportation,  is  authorized  to  agree  with 
and  to  guarantee  to  every  carrier  making  operating- 
returns  to  the  Interstate  Commerce  Commission,  that 
during  the  period  of  federal  control,  it  shall  receive  as 
just  compensation  an  annual  sum,  payable  from  time 
to  time  in  reasona])le  installments,  not  exceeding  a 
sum    ec|uivalout   as  nearly    as   may  be   to   its    average 

4.      For    full    copy    of    Act    pro-  of  orders  of  Director  General  un- 

viding  for  federal  control  of  car-  der  Federal   Control   Act,  see  Ap- 

riers  durins;  period  of  the  war,  see  pendix  Q,  infra, 
appendix     D,     infra.      For    copies 


§  46]  Federal  Opekatiox  During  War  115 

animal  I'ailway  operating  iiicomc  foi-  tlio  tliroe  years 
ending  Juno  oOtli,  1917.  'I'lx'  lirst  section  also  con- 
tains fnrtlier  jirovisions  authorizing  the  .President  to 
insert  certain  stipulations  in  the  agreements  witli  the 
carriers.  Section  2  prescribes  tliat  if  no  agreement 
is  made  witli  the  carrier,  the  President  may  nevertlie- 
less  compensate  any  carrier  wliile  under  federal  control. 
Under  tlie  provisions  of  section  .3  all  claims  for  just 
compensation  not  adjusted  as  jn'ovidcd  in  section  1  shall, 
on  the  api)lication  of  the  President  or  of  any  carrier,  be 
submitted  to  a  board  consisting  of  three  referees  to 
be  appointed  by  the  Interstate  Commerce  Commission 
with  a  proviso  for  an  ajipeal  to  the  Court  of  Claims. 
Section  5  prohibits  any  carrier  while  under  federal  con- 
trol from  declaring  or  paying  any  dividend  in  excess 
of  its  regular  rate  of  dividends  during  the  three  years 
eluding  June  .30th,  1917,  without  the  jirior  approval  of 
the  President. 

Under  the  provisions  of  section  6  the  sum  of 
$500,000,000  is  appropriated  for  the  use  of  the  President 
as  a  revolving  fund  for  the  purpose  of  paying  the  ex- 
penses of  federal  control.  For  the  purpose  of  providing 
funds -requisite  for  maturing  obligations  or  for  legal  and 
proper  expenditures,  or  for  reorganizing  railroads 
in  receivership,  section  7  provides  that  the  carriers  may 
during  the  period  of  federal  control  issue  such  bonds, 
notes,  equipment  trust  certificates,  stock,  and  other 
forms  of  securities  as  the  President  may  first  approve. 
Section  8  provides  that  the  President  may  execute  any 
of  the  powers  granted  him  with  relation  to  federal 
control  through  such  agencies  as  he  may  determine 
and  may  fix  the  reasonable  compensation  for  the  ])or- 
foi'inance  of  services  in  connection  therewith. 

§  46.  Purpose  of  Congress  in  Enacting  the  Act 
Providing  for  Federal  Control  During  War.  The 
purpose  of  Congress  in  enacting  the  act  providing  for 
federal  control  of  transportation  systems  during  the 
war    with    Germanv    was    thus    stated    bv    the    Senate 


116  CoNTTjoL  Over  Common  Carriers  [§  46 

Committee  on  Interstate  Commerce  in  its  report  sub- 
mitting tlie  bill:''  "The  Committee  on  Interstate  Com- 
merce, to  whom  was  referred  the  bill  (S.  3752)  to  pro- 
vide for  the  operation  of  transportation  systems  while 
under  Federal  control,  for  the  just  compensation  of 
their  owners,  and  for  other  purposes,  have  considered 
the  same  and  report  thereon  with  the  recommendation 
that  the  bill  do  pass  without  amendment.  On  August 
29,  1916,  Congress  enacted  the  following:  'The  Presi- 
dent in  time  of  war  is  empowered  through  the  Secre- 
tary of  War  to  take  possession  and  assume  control 
of  any  system  or  systems  of  transportation  or  any 
part  thereof,  and  to  utilize  the  same  to  the  exclusion,  as 
far  as  may  be  necessary,  of  all  other  traffic  thereon 
for  the  transfer  or  transportation  of  troops,  war  material, 
and  equipment,  or  for  such  other  purposes  connected 
with  the  emergency  as  may  be  needful  or  desirable.,' 
Under  this  statute  and  by  virtue  of  all  other  power 
enabling  him,  the  President,  on  December  28,  1917,  took 
possession  and  control  of  the  railroad  systems  of  con- 
tinental United  States  and  the  owned  or  controlled 
systems  of  coastwise  or  inland  water  transportation. 
He  appointed  Hon.  William  G.  McAdoo  Director  General 
of  Railroads.  Since  December  28  he  has  been  operating 
those  systems  of  transportation  for  war  and  national 
purposes.  There  was  no  provision  in  the  act  of  August 
29,  1916,  for  determining  the  just  compensation  due  as 
a  constitutional  right  to  the  owners  of  the  properties 
thus  taken  over  for  public  purposes.  It  therefore 
became  necessary  to  provide  the  proper  legislation  to 
meet  the  two  very  important  needs;  first,  the  proper 
judicial  machinery  for  determining  the  amount  of  just 
compensation  thus  accruing;  secondly,  to  give  to  the 
President  the  authority  to  offer  the  owners  of  the  prop- 
erty thus  taken  just  and  reasonable  terms  for  com- 
pensation which,  if  accepted,  will  determine  finally 
and  completely  all  rights  as  between  the  Government 

5.      Report    246,    Part    1,    65th     Congress,    2d    Session. 


§  46]  FEDKHAf-  Operation'  DrMuxf;  War  117 

and  I  lie  owiicis,  lliiis  ax'oidiii.i;"  I  lie  dolays  incident  to 
lili.i;ation  and  ^ivini;-  slrenntli  and  siability  to  the 
security  market  and  icnderin^'  assistance  to  our  future 
war  financing.  Tlie  President,  in  his  proclamation, 
instructed  tlie  Director  General  to  enter  upon  negotia- 
tions with  the  several  companies  looking  to  an  agree- 
ment for  just  and  reasona])le  compensation  for  the 
possession,  use,  and  control  of  their  respective  prop- 
erties on  the  basis  of  an  annual  guaranteed  compen- 
sation above  acci'uing  dejnociation  and  the  mainte- 
nance of  their  properiies,  equivalent,  as  nearly  as  may  be, 
to  the  average  of  the  net  railway  o]ierating  income 
thereof  for  the  three-year  period  ending  June  30,  1917. 
Your  committee  were  of  opinion  that  this  is  the  time 
for  war  emergency  legislation  and  not  the  time  to  settle 
the  many  controversial  and  vexed  questions  concerning 
our  future  transportation  policy.  With  these  prelimi- 
nary observations  your  committee  submits  a  brief  ex- 
])lanation  of  the  various  sections  of  the  bill:  Section 
1  authorizes  the  President  to  agree  with  the  carriers 
whose  property  has  been  taken  over  that  during  the 
period  of  Federal  control  each  carrier  may  receive  as 
just  compensation — in  lieu  of  all  rights  arising  under 
due  process  of  law — an  annual  sum  not  exceeding  its 
average  annual  railway  operating  income  for  the  three 
years  ended  June  30,  1917,  plus  a  return  at  a  rate  to 
be  fixed  by  the  President  upon  the  cost  of  additional 
facilities  made  during  the  last  six  months  of  1917,  the 
amount  of  such  net  earnings  and  the  cost  of  such  addi- 
tional facilities  to  be  determined  by  the  Interstate 
Commerce  Commission  and  certified  to  the  President. 
This  is  in  substance  the  President's  suggestion.  The 
certification  of  the  commission  is  to  be  taken  as  con- 
clusive for  the  purpose  of  such  agreement.  Any  operat- 
ing income  in  excess  of  such  standard  return  is  to  be 
paid  into  the  Treasury  of  the  United  States  and  i)laced 
in  the  revolving  fund  provided  by  section  6  of  this  act. 
About  75  great  operating  railroads  do  over  90  per  cent 
of  the  railroad  business.  It  is  believed  by  your  com- 
mittee that  most  of  these  great  railroad  carriers  will 


lis  Control  Over  Common  Carriers    '         [^  ^^ 

accept  these  terms  as  a  just  and  fair  iiioasiire  of  their 
constitutional  rights.  Section  1  fnrtlior  provides  tliat 
ordinary  taxes,  National  and  State,  shall,  as  now,  be 
paid  out  of  operating  revenue;  but  war  taxes  accruing 
under  the  act  of  October  3,  1917,  are  to  be  paid  by  the 
companies  out  of  their  own  funds,  or  charged  against 
the  standard  return.  In  other  words,  the  holders  of 
railroad  securities  are  by  section  1  (like  holders  of  other 
securities)  to  b'^ar  their  own  just  portion  of  the  war  bur- 
den. Section  1  also  requires  that  each  agreement 
the  maintenance  and  depreciation  of  the  property  and 
shall  contain  adequate  and  appropriate  provisions  for 
the  creation  of  any  reserves  or  reserve  funds  found 
necessary  in  connection  therewith;  so  that  the  properties 
may  at  the  end  of  Federal  control  be  returned  to  tlie 
owners  in  a  condition  substantially  equivalent  to  their 
condition  when  taken  over  by  the  Government;  and 
that  proper  adjustments  both  in  the  standard  return 
and  in  the  terms  of  final  settlement  may  be  made.  Thus 
even-handed  justice  will  be  worked  out  as  between 
each  company  and  the  Federal  Government.  If  the 
right  of  all  the  railroads  making  returns  to  the  Inter- 
state Commerce  Comission  are  fixed  under  the  provisions 
of  this  section,  the  Government  will  guarantee  approx- 
imately^ $945,000,000  a  year.  Since  the  preparation  of 
this  summary,  however,  the  committee  has  amended 
section  1  by  inserting  a  provision  authorizing  a  return, 
at  such  reasonable  rate  as  the  President  may  determine, 
upon  the  cost  of  additional  transportation  facilities  made 
during  the  last  six  months  of  1917.  This  addition,  of 
perhaps  ten  to  fifteen  millions,  is  made  in  the  interest 
of  equality,  it  a])pearing  that  two  hundred  to  two  hun- 
dred and  fifty  millions  of  additional  capital  has,  during 
the  last  half  of  1917  been  i^ut  into  transportation  facili- 
ties by  a  comparatively  few  of  the  carriers  taken  under 
Federal  control.  There  has,  of  course,  been  much 
discussion  as  to  the  fairness  and  justice  of  the  proposed 
amount  of  the  standard  return.  It  should  not  be  over- 
looked that  the  gist  of  the  question  is.  What  would 
these  companies  be  likely   to  receive  from  the   courts 


§4(11  Fkdkij.m,  ( )i'Ki{ATi(tN   Druixd  Wak  ni) 

as  just  PoiniHMisation?  The  amount  of  just  coinpensation 
is  not  a  lo,i?islativo  ([uostion — it  is  a  judicial  (juestion. 
(  Moiiongalicia  Navi.gation  Co.  v,  II.  8.,  148  U.  S.,  312). 
Jt  follows,  in  tlio  opinion  of  your  ('oramittoe,  lliat  nnifli 
of  llie  evidonr'o  and  discussion  concern  in.*;-  tli<'  so-called 
surplus  is  in-ele\aiil.  It  is  ])lainly  in  the  ])ul)lic  Inter- 
cast— and  indeed  a  war  need — tinit  the  President  l»e 
autliorized  to  offer  to  settle  with  the  owners  of  these 
pro])erties  on  a  basis  approximately  ecpiivalent  to  that 
whi(^h  sonnd-thinkini>:  men  would  advise  the  owners  they 
would  be  likely  to  receive  by  court  decision.  The 
rii>-hts  of  such  owners  must  be  tested  by  present  con- 
ditions— not  by  some  theory  of  capitalization  never 
made  operative  under  Federal  or  State  law  or  generally 
followed  by  the  courts.  Questions  of  value  are  always 
diflicult  questions.  It  is  highly  probable,  if  not  certain, 
if  the  whole  question  were  remitted  to  the  courts,  they 
would  take  as  tbe  basis  for  determining  just  compensa- 
tion, the  actual  net  earnings  for  a  reasonable  period. 
During  the  last  three  years  new  investment  in  proper- 
ties now  under  Federal  control  has  been  at  the  rate 
of  approximately  three  hundred  and  seventy-five  millions 
a  year.  The  year  ended  June  30,  1915,  was  one  of 
the  poorest  in  recent  railroad  history.  The  other  two 
years  have  been  prosperous  years.  The  average  of  the 
three  years  therefore  reflects  neither  poverty  nor  riches. 
The  purchasing  power  of  the  dollar  accruing  to  the 
stockholder,  as  well  as  to  the  wage  earner,  has  de- 
creased. Dividends  in  industrial  com])anies  have  largely 
increased.  The  rate  of  return  upon  Government  bonds, 
l)oth  abroad  and  in  the  United  States,  has  largely  in- 
creased. The  percentage  of  return  npon  the  value  of 
the  railroad  property  taken  under  Federal  control  can 
not  be  accurately  stated;  for  until  the  Federal  valuation, 
now  in  process,  is  completed,  no  one  knows  the  value 
of  that  property.  The  book  value  may  be  taken  for 
certain  comparative  purposes,  as  of  some  significance;  it 
must  not  be  regarded  as  accurate.  The  proposed  standard 
return,  figured  upon  the  book  value  of  all  the  companies 
will  give  a  return  not  far  from  5.32  per  cent.    Compar- 


120  Control  Over  Common  Carriers  [§  46 

ins;    tliis    return    to    that    which    accrues    to    the    pur- 
chaser of  Government  bonds,  it  seems  large;  but  Gov- 
ernment bonds  run  for  a  period  of  25  to  30  years.     The 
proposed  guarantee  to  the  owners  of  railroad  securities 
may    run   for    (^iily    a    few    months.     The    Government 
is  ju-actieally  a  tenant   at  wilh     After  the  most  careful 
consideration   your  committee  are  of   the   opinion   that 
the  owners  of  these  properties  would  not  be  imlikely  to 
to  receive  an  award  from  a  court  at  least  equal  to  the 
proposed  offer;  that  it  is  therefore  the  duty  of  Congress 
to  authorize  the  President  to  make  such  offers  as  will 
prevent    patriotic    and    fair-minded   American    citizens 
from  resorting  to  litigation,  in  time  of  war,  in  order 
to    determine   their  rights   against    their    Government. 
The  standard  return  thus  provided  for  will,  if  accepted 
by  the  various  operating  companies,  be  disposed  of  sub- 
stantially as  hitherto;  that  is,  for  the  payment  of  their 
fixed  charges  (and  war  taxes  which  remain  a  burden  up- 
on the  standard  return),  for  dividends,  and  if  any  balance 
remains,  for  so-called  surplus.     The  fixed  charges  ordi- 
narily fall  into  interest  on  bonds  and  other  debt  obliga- 
tions, and  leased  line  rentals,  generally  in  the  form  of 
interest  and  dividends  on  outstanding  bonds  and  stock 
or  leased  companies.     These  rentals  are  not,  as  is  some- 
times thought,  properly  a  part  of  operating  expenses. 
They  are  really  disbursements  for  the  use  of  capital; 
for  it  makes  no  practical  difference  whether  the  operat- 
ing company  is  consolidated  with  the  leased  companies 
and  pays  interest  and  dividends  upon  its  own  bonds 
and   stock  issued  in  payment  for  the   subsidiary  com- 
panies, property,  or  whether  it  pays  interest  and  divi- 
dends upon  the  stock  and  bonds  of  the  leased  companies. 
In  either  event  the  disbursement  is  a  disbursement  on 
capital    account    and   not   on   operating   accoimt.      The 
foregoing  makes  it  clear  that  the  railroads  accepting 
the  suggested  terms  will  be  fully  able  to  make  all  their 
usual  disbursements  to  their  security  holders.    In  effect, 
this  regular  income  is  guaranteed  by  the  Government 
to  the   security  holders  during  the   period  of  Federal 
Control.      The    stabilizing,    confidence-producing    effect 


<§.    46]  FeDKUAL    Ol'KHATlON    Dl'HINC    WaK  121 

of  such  guaranty  will,  as  your  coiiiinittee  bolicve,  be 
of  great  assi-staiico  in  future  war  fiiianeiiig.  Tlie  terms 
above  indicated  will  i^robably  be  found  just  and  fairly 
applicable  to  the  security  holders  of  most  of  the  rail- 
roads of  the  country.  But  there  are  certain  undevel- 
oped and  reorganizing  roads  whose  operating  income 
for  three  years  will  not  fairly  test  their  right  to  just  com- 
pensation. Some  special  provision  to  meet  the  just 
demands  of  these  companies  seems  requisite.  Section 
1,  accordingly,  provides  in  the  last  paragraph  thereof 
that,  when  the  President  finds  tliat  the  condition  of 
nondividend  paying  carriers  is  becau.se  of  nonoperation, 
receivership,  or  other  undeveloped  or  abnormal  con- 
dition such  as  to  make  the  basis  of  earnings  provided 
for  the  other  carriers  "plainly  inequital)le,"  as  a  fair 
measure  of  just  compensation,  then  the  President  may 
make  with  such  carrier  such  agreement  as  under  the 
circumstances  of  the  particular  case  he  shall  find  just. 
Section  2  i3rovides  in  case  the  agreement  provided 
for  in  section  1  is  not  made,  the  President  is 
authorized  to  pay  not  exceeding  90  per  cent, 
of  the  estimated  amount  of  just  compensation.  This, 
in  the  opinion  of  your  committee,  would  tend  to  stabilize 
conditions  for  the  security  holders  of  the  newer  strug- 
gling companies,  whose  rights  may  not  be  easy  of  speedy 
ascertainment.  Section  2  does  not  require  the  President 
to  make  any  payment  at  all  to  such  owners,  thereby 
avoiding  the  danger  of  offering  a  premium  to  unreason- 
able and  greedy  litigants.  Section  3  provides  easily  avail- 
able facilities  safeguarding  the  constitutional  rights 
of  owners  to  have  their  just  compensation  determined 
by  due  process  of  law.  It  also  furnishes  another  oppor- 
tunity for  settlement  of  eases  which  may  not  be  satis- 
factorily disposed  of  by  agreements  in  accordance  with 
the  standard  return,  or  under  the  special  power  of  sec- 
tion ].  Section  3  provides  that  the  Interstate  Commerce 
Commission  shall,  on  the  application  of  the  President, 
or  of  any  carrier,  appoint  boards  of  referees,  the  com- 
mission and  its  forces  being  made  not  ineligible  as  such 
referees.    These  referees  are  armed  with  the  usual  pow- 


122  CoNTR(n.  OvKE  Common  (^arriees  [§  4G 

ers    of    judicial    tribunals — to    summon    witnesses,    re- 
quire the  production  of  books,  etc.,  and  may  bold  bear- 
ings in  Wasbington  and  elsewbere,  as  convenience  may 
serve.    Tbey  may  consolidate  and  classify  cases.     Tbese 
boards  are  to  give  full  bearings,  consider  all  pertinent 
facts,  and  report  tbeir  lindings  to  tbe  President  in  a 
form  convenient  and  available  for  tbe  making  of  such 
agreements  as  are  authorized  by  section  1.     Tbe  Presi- 
dent and  sucb  company  may  tben  make  an  agreement 
for  compensation  not  in  excess  of  tbat  reported  by  tbe 
referees.     Failing    sucb    agreement,   either    tbe   United 
States  or  tbe  company  may  tile  a  petition  in  the  Court 
of  Claims;  and  in  tbe  proceedings  in  this  court   sucb 
report  is  prima  facie  evidence  of  tbe  amount  of  just 
compensation  and  of  any  facts  reported.    It  is  tbe  confi- 
dent opinion  of  your  committee  tbat  section  3  not  only 
effectually  guards  tbe  constitutional  rights  of  all  owners 
but   that  tbe  proceedings  before  the   referees  will  be 
found   so  complete   and   satisfactory  tbat  few,   if   any, 
cases  will  ever  reach  the  Court  of  Claims.    Section  4  pro- 
vides tbat  tbe  agreed  or  ascertained  just  compensation 
may  be  increased  during  Federal  control  by  an  amount 
reckoned  at  a  reasonable  rate  per  centum  to  be  fixed 
by  tbe  President  upon  the  cost  of  additions  made  while 
the   Government  is  in  possession.      Manifestly    an   in- 
crease in   tbe  property  used  requires  a  corresponding 
increase  in  tbe  compensation  for  the  use.     No  increase 
is  allowed  for  additions  paid  for  out  of  surplus  during 
the   period   of  Federal   control.     Whether   a   denial   of 
any  return  upon  surplus  earnings  invested  in  additional 
facilities  will  result  in  throwing  an  unnecessary  burden 
of  financing  upon  tbe  Federal  Government  and  in  tbe 
accumulation    of   a   dead    sur])lus   will   require    careful 
consideration  by  the  Senate.    Tbe  main  purpose  of  sec- 
tion 5  is  to  give  stability  to  our  Rnancial  conditions. 
From  tbe  standard  return  the  railroad  companies  may 
without  permission  pay  tbeir  regular  dividends.     Con- 
ceivably it  may  be  desirable  that  some  of  the  prosper- 
ous carriers  should  be  permitted  somewhat  to  increase 
their  regular  dividends;  if  so,  tbe  Pi'esident's  prior  ap- 


§  4()1  Kedkhal  Oi'KiiA'JKKN    i)L:j:iN(;   Wak  1--5 

proval  must  bo  ol)taiiU'd.  NondividciKl  payors  or  irrog- 
iilar  dividend  payors,  wliose  standard  or  asoortained 
return  warrants  dividends,  may  with  the  President's 
l)erniisKion  be  put  in  tlie  dividend-paying  class  at  sueli 
rate  as  the  President  may  determine.  Tliis  section 
goes  upon  the  theory  that  during  the  war  tlie  railroad- 
security  holders  ought  to  receive  certain,  regular  and 
moderate  dividends;  but  that  extra,  unexpected  divi- 
dends— a  common  source  of  speculation  and  numipula- 
tion — should  ;iot  be  permitted.  Section  G  is  a  very 
important  section.  It  provides  for  a  revolving  fund 
to  be  made  up  from  an  initial  appropriation  of  $500,000,- 
000,  together  with  any  excess  earnings  of  any  of  the 
carriers.  This  fund  is  to  be  available  to  the  President 
for  the  purpose  of  paying  the  expenses  of  the  Federal 
control,  sui)plying  any  deficit  in  the  just  compensation 
accruing  to  any  carrier,  and  to  provide  for  rolling 
stock  and  terminals,  to  be  used  and  accounted  for  as 
the  President  may  direct,  and  to  be  disposed  of  as 
Congress  may  hereafter  by  law  provide.  This  contem- 
plates that  engines,  cars,  and  perhaps  terminals,  will 
be  purchased  or  constructed  by  and  will  belong  to  the 
United  States.  This  rolling  stock  will  be  used  where- 
over  war  and  national  needs  demand — precisely  as 
the  Pullman  and  other  private  car  lines  are  now  used 
on  the  lines  of  the  various  carriers  as  the  needs  of 
industry  or  the  demands  of  the  seasons  require.  The 
ultimate  disposition  of  this  rolling  stock  must  await 
l)ost-war  legislation.  This  section  contemplates  that 
such  rolling  stock,  although  owned  by  the  United  States, 
will  be  used  on  the  lines  of  the  various  railroads  and 
the  use  charged  for  upon  the  books  of  the  companies, 
so  that  at  the  expiration  of  Federal  control  the  book- 
keeping of  each  railroad  company  will  reflect,  as  hither- 
to, the  traffic  whi(^h  has  moved  over  each  road  and  the 
cost  of  operation.  The  section  further  provides  that 
the  President  may,  on  or  in  connection  with  the  jirop- 
erty  of  any  carrier,  make  or  order  any  company  to 
mako  additions  desirable  either  for  war  purposes  or 
in  the  public  interest.     Doubtless  it  will  be  necessary 


1-4  Control  Over  Common  Carriers  [§  46 

in  conneotion  wilh  Army  camps  and  shipboards  to 
make  substantial  extensions  of  railroad  and  other  car- 
rier property.  Your  committee  believes  that  such  ad- 
ditions and  extensions  should  become  and  remain  the 
property  of  the  separate  carriers;  that  there  should  be 
no  confusion  of  title  as  to  real  estate,  tracks,  and  other 
fixed  property  between  any  railroad  company  and  the 
United  States.  As  it  is  possible  that  some  such  ad- 
ditional facilities  thus  made  to  the  property  of  various 
carriers  will  in  times  of  peace  be  found  worth  less  than 
the  cost  thereof,  this  section  provides  that  claims  for 
loss  or  damage  accruing  from  such  compelled  invest- 
ment shall  be  settled  either  by  agreement  between  the 
carrier  and  the  President,  or,  failing  such  agreement, 
shall  be  ascertained  by  due  process  of  law,  as  provided 
in  section  3.  As  some  of  the  companies  may  not  have 
the  requisite  funds  to  pay  for  such  extensions  and  ad- 
ditions, the  President  is  authorized  from  the  revolving 
fund  to  advance  all  or  any  part  of  such  cost,  these  ad- 
vances to  bear  interest  at  rates  and  to  be  payable  on 
such  terms  as  the  President  may  determine,  so  that 
the  United  States  may  ultimately  be  fully  reimbursed 
for  such  advances.  Section  6  also  provides  that  the 
President  may,  from  the  revolving  fund  expend  such 
sums  as  he  deems  necessary  or  desirable  for  the  utiliza- 
tion or  operation  of  canals  and  for  the  purchase,  con- 
struction, utilization,  and  operation  of  boats  and  other 
water  carriages  on  the  inland  and  coastwise  waterways. 
It  is  believed  by  your  committee  that  much  relief  may 
be  afforded  the  rail  carriers  by  a  further  development 
of  the  watercarriers  and  of  facilities  on  these  natural 
water  highways.  Section  7  provides  for  financing  the 
maturities  of  carriers  during  the  period  of  Federal  con- 
trol. It  authorizes  the  President  to  j:)urchase  for  the 
United  States,  at  prices  not  exceeding  par,  any  securi- 
ties issued  by  the  railroads,  roads  approved  by  him  as 
consistent  with  the  public  interest.  Such  securities 
may  be  sold  without  loss  to  the  Treasury  whenever 
the  President  deems  it  desirable,  the  proceeds  of  such 
sale  to  go  back  into  the  revolving  fund.     The  estimates 


§  4(i  I  Fkdkkal  OpKitAiioN    hnuNMi   Waii  125 

of  tlio  iiiMtin'itics  for  llic  iicxl  i'onr  vcmi's  aro  as  follows: 

1918    .....! $l82,60r),52S 

1919 188,213,0ryj 

1920 186,52(),25:5 

1921 440,905,5-J8 

Section  8  jji-ovidcs  in  general  terms  that  the  President 
may  execute  his  powers  with  relation  to  the  Federal 
control  throngh  such  agencies  as  he  may  determine  and 
fix  the  reasonable  compensation  for  services  rendered 
in  connection  therewith,  using  the  personnel  and  facili- 
ties of  the  Interstate  Commerce  Commission  and  all 
other  governmental  bodies.  Section  9  is  simply  to  the 
effect  that  nothing  contained  in  this  act  shall  be  deemed 
to  restrict  the  powers  heretofore  given  to  the  President 
to  take  possession  and  assume  control  of  any  and  all 
systems  of  transportation.  It  also  provides  that  this 
act  shall  apply  to  any  carriers  to  which  Federal  con- 
trol may  be  hereafter  extended.  Section  10  provides 
that  so  far  as  not  inconsistent  with  Federal  control, 
each  of  the  carriers  shall  remain  subject  to  all  laws  and 
liabilities  whether  arising  under  statutes  or  at  common 
law.  It  also  provides  that  the  President  may,  when- 
ever in  his  opinion  the  public  interest  so  requires, 
initiate  rates  by  filing  the  same  with  the  Interstate 
Commei'ce  Commission,  sucli  rates  to  be  fair,  reasonable, 
and  just,  and  that  upon  complaint  tlie  rates  thus  initi- 
ated by  him  may  be  reviewed  by  the  Interstate  Com- 
merce Commission.  In  such  review  the  Interstate  Com- 
merce Commission  may  consider  all  the  facts  and  cir- 
cumstances existing  at  the  time  of  the  making  of  the 
rate.  After  full  hearing,  the  commission  may  make 
such  findings  and  orders  as  are  authorized  by  the  act 
to  regulate  commerce  as  amended.  Your  committee 
were  of  opinion  that  the  commercial  organizations  of 
the  country  should  be  disturbed  as  little  as  the  emergen- 
cy would  allow,  and  that  every  safeguard  would  be 
thrown  around  the  great  productive  activities  of  the 
countr}^  everything  possible  to  inspire  confidence  in 
their  being  i)rotecte(l  from  unnecessary  embarrassment. 
Section  11  provides  penalties  for  violation  of  this  act 


126  Control  Over  Common  Carriers  [§  46 

or  orders  of  the  President  made  tlierennder.  Section 
12  lias  been  inserted  at  the  request  of  the  Department 
of  Justice  and  is  intended  to  provide  for  continuintj^ 
the  life  and  stalKs  (jno  of  cases  pending  under  the  anti- 
trust and  interstate  commerce  acts.  It  requires  no  com- 
ment. Section  13  provides  that  the  Federal  control 
shall  continue  not  to  exceed  18  months  after  the  dec- 
laration of  peace.  It  is  possible  that  certain  conditions 
may  arise  from  Federal  control  which  will  need  adjust- 
ment before  the  properites  are  returned  to  their  owners, 
and  a  reasonable  period  should  intervene  in  which  these 
conditions  may  be  met  and  adjusted.  It  may  be  that 
the  nation  will  be  imwilling  to  return  to  the  conditions 
obtaining  before  the  assumption  of  Federal  control. 
Legislation  may  be  demanded  radically  changing  the 
relation  of  the  Government  to  the  railroads  from  that 
now  existing  in  the  interstate  commerce  act  as  amended. 
These  problems  will  require  time  for  careful  and  de- 
liberate consideration.  Therefore  your  committee  has 
suggested  a  period  of  18  months,  and  they  believe  it 
will  be  found  adequate  for  that  purpose.  In  section 
1.3  there  is  also  a  provision  to  the  eifect  that  the  Pres- 
ident may,  prior  to  July  1  next,  relinquish  control  of 
such  transportation  system  as  he  may  deem  not  needful 
or  desirable,  and  may,  thereafter,  on  agreement,  relin- 
quish all  or  any  part  of  any  system  of  transportation. 
Your  committee  also  recommends  that  at  any  time  after 
July  1,  1918,  the  President  may  agree  with  the  owners 
of  all  or  any  part  of  any  system  of  transportation 
when  in  the  opinion  of  the  President  furtlier  Federal 
control  of  the  same  is  unnecessary,  to  relinquish  such 
control  to  the  owners.  The  section  also  contains  a  gener- 
al provision  that  the  president  may  relinquish  all  rail- 
roads at  any  time  when  he  shall  deem  such  action  need- 
ful or  desirable.  Your  committee  have  adhered  to  the 
set  purpose  to  limit  this  legislation  to  war  emergency 
purposes,  and  to  avoid  all  contentions  and  controversial 
questions.  We  believe  that  the  bill  will  accomplish 
these  results.  It  follows  closely  the  President's  recom- 
mendations.    It  has  in  its  main  provisions  and  i)urpose 


§  471 


Fef»i:i;ai.  (  )im:i{.\ti()\    Dri'.ixc   War 


127 


received    general     ajiproxal     aii<i     cuinpaiativ**!}'     little 
ci'iticisii]." 

§  47.  Effect  of  National  Statute  Providing-  for 
Federal  Control  Upon  Other  Laws,  Federal  and  State. 
It  is  proscribed  in  Section  lU  ui'  the  Act  piosidiiig  for 
federal  control  of  carriers  during  the  period  of  the  war, 
that  the  carriers  while  under  federal  control  shall  be 
subject  to  all  laws  and  liabilities  as  common  carriers, 
whether  arising  under  state  or  federal  laws  or  at  common 
law,  except  in  so  far  as  may  be  inconsistent  with  the  pro- 
visions of  the  Federal  Control  Act  or  any  other  Act  aj)- 
plicable  to  such  federal  control,  or  with  any  order  of 
the  President. 

The  phrase  ''or  with  any  order  of  the  President" 
seems  to  imply  that  the  President  may,  by  order,  set 
aside  other  laws,  federal  or  state,  affecting  carriers  un- 
der federal  control."    For  exam])le,  the  Director  General 


G.  Such  seems  to  have  been  the 
view  of  Senator  Townsend,  one  of 
the  members  of  the  conference 
committee  on  the  Act  while  pend- 
ing in  the  Senate.  In  discussing 
tlie  provisions  of  section  10  In  the 
Senate,  he  said:  "The  words,  'or 
with  any  order  of  the  President' 
were  imputed  into  the  bill  and 
they  had  no  object  known  to  the 
committee.  They  were  not  neces- 
sary for  the  purposes  of  the  para- 
graph. It  is  clear  to  anyone  who 
will  read  the  bill  that  the  origi- 
nal provision  was  intended  simply 
to  fix  the  status  of  claimants 
against  the  railroads  after  they 
were  taken  over  by  the  Federal 
Government.  It  was  thought  that 
perhaps  a  new  situation  would 
arise  by  such  taking  over,  and 
that,  therefore,  the  same  laws  ahd 
procedure  which  had  obtained 
prior  to  Federal  control  relative 
to  claims  and  suits  should  be  spe- 
cifically mentioned  as  applying  to 


conditions  afterwards.  No  law- 
yer would  have  difficulty  in  dis- 
covering what  the  paragraph 
meant.  But  it  was  thought  by  the 
Director  General,  or  by  some  one 
outside  of  the  committee,  that  it 
was  wise  to  insert  the  words,  'or 
with  any  order  of  the  President,' 
meaning  by  that  that  State  and 
Federal  laws  could  be  set  aside  by 
the  President's  order,  and  that 
not  necessarily  for  war  purposes. 
There  could  be  no  possible  reason 
for  inserting  this  language  so  far 
as  the  effective  control  of  the  rail- 
roads is  concerned.  That  specific 
power  has  not  been  granted  the 
President  up  to  the  present  time 
and  yet  the  Director  General  has 
been  operating  the  roads  for  three 
months  and  no  complaint  of  lack 
of  power  has  been  mentioned.  The 
author  of  this  provision  probably 
had  in  mind  what  purpose  it  might 
serve,  but  it  will  not  be  one  nec- 
essary to  tile  operation  of  the  roads 


128  Control  Over  Common  Carriers  [§  47 

of  railroads,  pursuant  to  tliis  and  other  provisions  of 
the  Federal  Control  Act,  issued  two  general  orders^  di- 
recting that  all  suits  against  carriers  while  under  federal 
control  must  be  brought  in  the  county  or  district  where 
the  plaintiff  resided  at  the  time  the  cause  of  action  ac- 
crued, or  in  the  county  or  district  where  the  cause  of 
action  arose.  Section  10  also  provides  that  actions 
at  law  or  suits  in  equity  may  be  brought  by  and  against 
carriers  and  judgments  rendered  as  provided  by  the  law 
when  the  Federal  Control  Act  became  effective. 

§  48.  President  Authorized  to  Initiate  Rates  and 
Charges  for  Transportation  During  Period  of  Federal 
Control.  Section  10  of  the  Act  provides  that  during 
the  period  of  federal  control,  whenever,  in  his  opinion, 
the  public  interest  requires,  the  President  may  initiate 
rates,  fares,  charges,  classifications,  regulations,  and 
j)ractices  by  filing  the  same  with  the  Interstate  Com- 
merce Commission,  which  rates,  fares,  charges,  classifica- 
tions, regulations  and  practices  shall  not  be  suspended 
by  the  Commission  pending  final  determination. 

The  statute  further  provides  that  such  rates,  fares, 
charges,  classifications,  regulations  and  practices  shall 

for  war  purposes.  Until  the  Sena-  original  proponents  of  the  provi- 
tor  from  Arkansas  (Mr.  Robinson)  sicn  had  in  mind;  but  knowing,  as 
so  forcefully  and  effectually  dis-  I  do  know,  what  has  come  from 
cussed  this  provision  in  the  Sen-  legislation  heretofore  enacted  by 
ate,  I  had  not  known  that  anyone  Congress — namely,  the  food  and 
believed  that  with  it  left  out  the  fuel  control  bill — I  thought  it  was 
President  would  be  unable  to  very  unwise  to  incorporate  arbi- 
operate  the  railroads  successfully.  trary  power  in  this  measure  unless 
I  am  confident  the  Senator  is  mis-  there  was  some  definite  reason  for 
taken,  for  I  repeat  that  they  have  doing  so  and  some  war  emergency 
been  operated  without  difficulty  was  to  be  served.  This  matter  was 
for  three  months  without  this  law,  debated  on  the  floor  of  the  Senate; 
and  if  it  were  never  enacted  no  but  my  contention  was  not  agreed 
embarrassment  would  result  to  to  by  the  Senate,  and  so  I  had  to 
Government  control.  I  still  Insist  adhere  to  the  action  of  the  Senate 
that  these  objectionable  words  in  the  conference  committee;  but 
have  no  legitimate  place  in  this  all  I  had  to  do  was  to  remain  si- 
paragraph.     The  House  of  Repre-  lent." 

sentatives  left  them  out.     *     *     *  7.     General   Orders   No.    18   and 

I  do  not  know   exactly  what  the  18a  Appendix  Q,  infra. 


<§  49]  Fkdkkai.  Oi'KUAiiox   DuHi.Nd  War  129 

be  reasonable  and  just  and  shall  take  effect  at  such 
time  and  U])()n  such  notice  as  he  may  direct;  but  the 
Interstate  Commerce  Commission  shall,  upon  complaint, 
enter  upon  a  hearing  concerning  the  justness  and 
reasonableness  of  so  much  of  any  order  of  the  President 
as  establishes  or  changes  any  rate,  fare,  charge,  classifi- 
cation, regulation,  oi-  practice  of  any  carrier  under  feder- 
al control,  and  may  consider  all  the  facts  and  circum- 
stances existing  at  the  time  of  the  making  of  the  same. 
In  determining  any  question  concerning  any  such  rates, 
fares,  charges,  classiiications,  regulations,  or  ])ractices, 
or  changes  therein,  the  Interstate  Commerce  Commission 
shall  give  due  consideration  to  the  fact  that  the  trans- 
portation systems  are  being  operated  under  a  unified 
and  coordinated  national  control  and  not  in  competition. 
After  a  full  hearing  the  Commission  may  make  such 
findings  and  orders  as  are  authorized  by  the  Act  to 
Regulate  Commerce  as  amended,  and  said  lindings  and 
orders  shall  be  enforced  as  provided  in  said  Act. 

A  proviso  to  Section  10  prescribes  that  when  the 
President  shall  find  and  certify  to  the  Interstate  Com- 
merce Commission  that  in  order  to  defray  the  expenses 
of  federal  control  and  operation  fairly  chargeable  to 
railway  operating  expenses,  and  also  to  pay  railway 
tax  accruals  other  than  war  taxes,  net  rents  for  joint 
facilities  and  equij^ment,  and  comijensation  to  the 
carriers,  operating  as  a  unit,  it  is  necessary  to  increase 
the  railway  operating  revenues,  the  Interstate  Com- 
merce Commission  in  determining  the  justness  and 
reasonableness  of  any  rate,  fare,  charge,  classification, 
regulation  or  practice,  shall  take  into  consideration 
said  finding  and  certificate  by  the  President,  together 
with  such  recommendations  as  he  may  make. 

§  49.  Actions  at  Law  or  Suits  in  Equity  may  be 
Brought  by  and  Against  Carriers  Under  Federal  Con- 
trol. The  Federal  Control  Act  declares  that  actions 
at  law  or  suits  in  equity  may  be  brought  by  and  against 
carriers  subject  thereto,  and  that  judgments  may  be 
rendered  as  now  provided  by   law.     In   any   action   at 

1  Coutrol  Curriers  9 


130  Control  Over  Common  Carriers  [§  49 

law  or  suit  in  equity  against  tlie  carrier,  no  defense 
shall  be  made  thereto  upon  the  grounds  that  the  carrier 
is  an  instrumentality  or  agency  of  the  federal  govern- 
ment; nor  sliall  any  such  carrier  bo  ontitk'd  to  have 
transferred  to  a  federal  court  any  action  instituted 
by  or  against  it,  which  action  was  not  so  transferable 
yiviov  to  the  federal  control  of  such  carriers.  Any  action 
wliicli  has  been  so  transferred  because  of  such  federal 
control  or  of  any  Act  of  Congress  or  official  order  or 
proclamation  relating  thereto,  shall  upon  motion  of 
either  party  be  retransf erred  to  the  court  in  which  it 
was  originally  instituted.  No  process,  mesne  or  final, 
shall  be  levied  against  any  property  under  such  federal 
control.  The  foregoing  provisions  constitute  a  part  of 
K^ection  10  of  the  Act. 

In  construing  the  foregoing  provisions,  the  Court 
of  Appeals  of  Kentucky  said:**  "Obviously,  the  effect  of 
the  foregoing  provisions  of  the  statute  is  to  entirely 
suspend  the  right  of  issuing  and  levying  executions, 
attachments,  or  other  like  process  against  the  property 
of  common  carriers  under  federal  control,  during  the 
continuance  of  such  control;  but  it  does  not  prevent  a 
litigant  from  bringing  his  action  against  the  latter  in 
any  court  of  competent  jurisdiction,  or  such  court  from 
granting  him  such  relief  in  the  form  of  a  judgment  or 
otherwise,  short  of  the  coercive  payment  or  satisfaction 
of  such  judgment  by  the  levy  of  an  execution  or  other 
like  process  upon  or  against  any  property  of  the  car- 
rier, as  the  litigant  might,  but  for  the  passage  of  the  act, 
under  the  laws  of  the  state  of  his  residence,  have  been 
entitled  to.  In  other  words,  he  ma}',  notwithstanding 
the  act,  bring  his  action  and  obtain  judgment  against 
the  carrier;  but  he  cannot  enforce  against  the  latter  the 
satisfaction  of  the  judgment,  when  obtained,  by  execu- 
tion or  similar  process.  The  object  of  the  act  of  Con- 
gress and  of  the  President's  proclamation  referred  to  is 
to  prevent,  except  as  allowed  by  the  director  general 
of  the  railroad  under  the  control   of  the   government, 

8.      Louisville    &    N.    R.    Co.    v.       Steel, Ky. ,  202  S.  W.  878. 


'^  4!) J  Federal  Opekation  During  War  131 

the  seizure  or  sale  of  its  property,  wliicli,  if  allowed, 
would  interfere  with  the  ^government's  use  of  such  prop- 
erty as  required  in  its  efforts  to  bring  the  war  to  a 
successful  issue.  It  is  true,  as  argued  by  counsel  for 
appellant,  that  in  construing  section  764,  Civil  Code 
Practice,  which  provides  that,  upon  the  affirmance  of  a 
judgment  for  the  jjayment  of  money  which  has  been 
superseded,  10  per  cent,  damages  on  the  amount  super- 
seded shall  be  awarded  against  the  appellant,  this  court 
has  held  that  damages  on  the  affirmance  of  a  judgment 
superseded  will  not  be  given  except  where  the  judgment 
is  one  that  might  be  enforced  by  execution  or  similar 
process.  Worsham  v.  Lancaster,  104  Ky.  813,  48  S.  W. 
410,  20  Ky.  Law  Rep.  969;  Bell's  Trustee  v.  City  of 
Lexington,  124  Ky.  463,  99  S.  W.  344,  30  Ky.  Law.  Rep. 
609.  But  this  fact  will  not  confer  upon  this  court  the 
right  to  withhold  the  10  per  cent,  damages  because  en- 
forcement of  the  judgment  therefore  by  execution  or 
similar  process  against  the  property  of  the  carrier  is 
suspended  by  the  act  of  Congress.  The  right  of  the 
appellee,  upon  the  affirmance  of  the  judgment  appealed 
from  to  the  10  per  cent,  damages,  is  no  more  prohibited 
by  the  act  of  Congress  than  was  his  right  to  recover  the 
judgment  in  the  court  below.  While  section  12  of  the 
act  declares  that  moneys  and  other  property  derived 
from  the  operation  of  the  carriers  during  federal  con- 
trol are  hereby  declared  to  be  the  property  of  the  United 
States,  it  also  ]n'ovides  for  its  disbursement  in  the  same 
manner  as  indicated  by  the  Interstate  Commerce  Com- 
mission's classification  of  accounts  in  force  December 
27,  1917.  The  fact,  however,  that  whatever  a])pellee 
receives  from  appellant  upon'  his  judgment  may  be  paid, 
according  to  such  classification  of  accounts,  out  of 
moneys  derived  by  the  federal  government  from  the 
operation  of  appellant's  railroad,  cannot  militate  against 
his  right  to  have  his  demand  against  a]>pellant  ascer- 
tained and  determined  by  the  judgment  of  a  court  of 
competent  jurisdiction.  In  this  case  his  claim  for  the 
damages  sued  for  has  been  fixed  by  the  judgment  ren- 
dered in  the  lower  court  and  affirmed  by  this  court;  and 
as  his  right  to  the  10  per  cent,  damages  claimed  upon 


132  Control  Over  Common  Carriers  [§  49 

the  amount  of  the  jiidg'ment  superseded  legally  results 
from  its  affirmance,  he  is  clearly  entitled  to  have  judg- 
ment therefor,  although  its  satisfaction,  by  reason  of 
the  prohibitive  provisions  of  the  act  of  Congress,  can- 
not, be  now  enforced  by  execution  or  other  coercive 
process  against  the  property  of  the  carrier.  In  addition 
to  what  has  been  said,  there  is  yet  another  reason  for 
granting  the  relief  now  asked  by  appellee.  There  is 
nothing  in  any  provision  of  the  act  of  Congress  which 
in  any  way  interferes  with  his  right  to  proceed  against 
the  surety  in  the  supersedeas  bond  for  the  amount  of 
his  judgment  recovered  against  appellant  in  the  lower 
court  or  the  10  per  cent,  damages  thereon  awarded  by 
this  court,  and,  as  by  the  terms  of  that  bond  the  surety 
is  also  liable  for  the  10  per  cent,  damages  resulting  from 
the  affirmance  of  the  judgment  in  this  court,  the  award- 
ing of  such  damages  by  this  court  will  be  and  is  neces- 
sary in  order  to  fix  and  determine  the  liability  of  such 
surety  therefor." 

§  50.  Penalty  for  Violations  of  the  Provisions  of 
the  Federal  Control  Act.  Section  11  of  the  Federal 
Control  Act  provides  that  every  person  or  corporation 
whether  carrier  or  shipper,  or  any  receiver,  trustee, 
lessee,  agent,  or  person  acting  for  or  employed  by  a 
carrier  or  shipper,  or  other  person,  who  shall  knowingly 
violate  or  fail  to  observe  any  of  the  provisions  of  the 
Act,  or  shall  knowingly  interfere  with  or  impede  the 
possession,  use,  operation,  or  control  of  any  railroad 
property,  railroad,  or  transportation  system  hitherto 
or  hereafter  taken  over  by  the  President,  or  shall  know- 
ingly violate  any  of  the  provisions  of  any  order  or 
regulation  made  in  pursuance  of  the  Act,  shall  be 
guilty  of  a  misdemeanor,  and  shall,  upon  conviction, 
be  punished  by  a  fine,  of  not  more  than  $5,000,  or,  if 
a  person,  by  imprisonment  for  not  more  than  two 
years,  or  both. 

Each  independent  transaction  constituting  a  viola- 
tion of,  or  a  failure  to  observe,  any  of  the  provisions 
of  the  Act,  or  any  order  entered  in  pursuance  there- 


§  51 J  Fedkhal  Opkijaijox  JJu'Hixii  War  133 

of,  will  eonstitiito  a  separate  offense.  For  the  taking 
or  conversion  to  its  own  use  or  tlie  embezzlement  of 
money  or  property  derived  from  or  used  in  connection 
with  the  possession,  use  or  operation  of  any  railroad 
system,  the  criminal  statutes  of  the  United  States,  as 
well  as  the  criminal  statutes  of  the  various  states  wliere 
applicable,  shall  apply  to  all  officers,  agents,  and  em- 
ployees engaged  in  said  railroad  and  transportation 
service,  while  the  same  is  under  federal  control,  to  the 
same  extent  as  to  persons  employed  in  the  regular  ser- 
vice of  the  United  States.   . 

§  51.  When  Federal  Control  of  Transportation 
Systems  Under  the  Statute  Shall  Terminate.  Section 
16  of  the  Act  declares  that  its  provisions  are  emergency 
legislation  enacted  to  meet  conditions  growing  out  of 
the  war,  and  nothing  therein  is  to  be  construed  as  ex- 
pressing or  prejudicing  the  future  policy  of  the  federal 
government  concerning  the  ownership,  control,  or  regula- 
tion of  carriers  or  the  method  or  basis  of  the  capitaliza- 
tion thereof. 

It  is  further  provided  in  Section  14  of  the  x\ct  that 
the  federal  control  of  railroads  and  transportation 
systems  therein  provided,  shall  continue  for  and  during 
the  period  of  the  war  and  for  a  reasonable  time  there- 
after, which  shall  not  exceed  one  year  and  nine  months 
next  following  the  date  of  the  proclamation  by  the 
President  of  the  exchange  of  ratifications  of  the  Treaty 
of  Peace.  But  the  President  may,  prior  to  July  1st, 
1918,  relinquish  control  of  all  or  any  part  of  any  rail- 
road or  system  of  transportation,  further  federal  control 
of  which  the  President  shall  deem  not  needful  or  de- 
sirable. 

The  President  may  at  any  time  during  the  period 
of  federal  control  agree  with  the  owners  thereof  to 
relinquish  all  or  any  part  of  any  railroad  or  system  of 
transportation,  and  he  may  relinquish  all  railroads  and 
systems  of  transportation  under  federal  control  at  any 
time  he   shall   deem   such    action   needful   or  desirable. 


PART  TWO 


DUTIES  AND  LIABILITIES  OF  COM- 

MON  CARRIERS  TO  SHIPPERS 

UNDER  ALL  FEDERAL 

INTERSTATE  LAWS 


THE  ACT  TO  REGULATE  COMMERCE  AND 
SUPPLEMENTARY  LEGISLATION. 

CARMACK  AND  CUMMINS  AMENDMENTS. 

FEDERAL  BILL  OF  LADING  LAW. 


(135) 


CHAPTER  IV 

The  Act  to  Regulate  Commerce  as  Originally 

Enacted — Its  Genesis,  Purpose,  General 

Scope  and  Validity. 

Sec.  52.     Brief  Historical  Review  of  Federal  Control  over  Carriers  and 
Scope  Thereof. 

Sec.  53.     Causes  Leading  to  Enactment  of  the  Act  to  Regulate  Com 
merce. 

Sec.  54.     Principles  of  the  Common  Law  Inadequate  to  Curb  Evils  of 
Railroad  Operation. 

Sec.  55.     Futile  Attempts  of  the  States  to  Regulate  Charges  for  Inter- 
state Transportation. 

Sec.  56.     Effect  of  the  Decision  in  Wabash  St.  L.  &  P.  Ry.  Co.  v.  Illinoi.5 

Sec.  57.     Power  of  Congress  to  Regulate  the  Duties  of  Carriers  of  In- 
terstate TraflTir. 

Sec.  58.     First  Step  Towards  Federal  Regulation  of  Interstate  Tran<5. 
portation  by  Rail — The  Cullom  Committee. 

Sec.  59.     Report  of  CoUum   Committee  to   Congress   and   Bill   Recom 
mended  on  January  18,  1886. 

Sec.  60.     Fundamental  Requirements  of  the  Act  to  Regulate  Commerce 
as  Originally  Enacted  in  1887. 

Sec.  61.     Purpose  of   Congress   in   Enacting  Original   Act  to  Regulate 
Interstate  Commerce. 

Sec.  62.     How  the  Interstate  Commerce  Act  should  be  Construed  and 
Interpreted. 

Sec.  63.     Commission   not  Authorized  Under   Original   Act  of   1887    to 
Prescribe  Rates  for  Transportation. 

§  52.  Brief  Historical  Review  of  Federal  Control 
over  Carriers  and  Scope  Thereof.  More  than  thirty 
years  have  passed  since  the  Act  to  Regulate  Commerce 
was  enacted.  During  t«hat  period  the  control  and  regula- 
tion of  all  the  interstate  traffic  of  common  carriers  by 
railroad  have  passed  from  the  domain  of  the  common  law 
and  the  dubious  powers  of  state  statutory  enactments 
to  the  federal  government.  The  rights  of  shippers  of 
interstate  freight,  and  the  liabilities  of  railroad,  express, 
sleeping  car,  pipe  line,  telegraph,  telephone  and  cable 
companies  as  to  all  their  interstate  tralBc,  are  now  gov- 
erned by  the  federal   statutes  and   applicable  common 

(137) 


138  Duties  to  Interstate  Shippers.  [^  52 

law  principles  as  interpreted  and  applied  in  the  federal 
courts/ 

Commencing  with  the  regulation  of  rates  and 
charges  and  discriminations  in  all  forms,  the  federal 
authority  has  been  extended  from  time  to  time  until 
now  nearly  every  phase  of  interstate  transportation 
by  railroad  and  transmission  of  messages  by  telegraph, 
telephone  and  cable,  is  governed  by  the  federal  laws 
and  federal  decisions.  As  to  all  interstate  and  foreign 
shipments  by  the  carriers  subject  to  the  Act,  the  law 
of  liability  has  been  changed  so  that  the  rights,  duties 
and  liabilities  relating  thereto  can  no  longer  be  found 
and  ascertained  in  state  statutes  and  state  decisions 
construing  the  common  law.  State  courts  have  often 
been  slow  to  grasp  this  silent  evolution  of  the  law  of 
interstate  carriers,  as  the  number  of  decisions  by  the 
United  States  Supreme  Court  overturning  the  opinions 
of  the  state  courts  will  disclose.  But  with  whatever 
regret  we  may  view  the  passing  of  the  diversified  con- 
trol of  states  over  interstate  carriers,  it  is  now  well  re- 
cognized and  thoroughly  established  that  the  rights  of 
shippers  of  interstate  freight  and  the  liabilities  of  inter- 
state carriers  relating  thereto,  are  governed  by  one  uni- 
form law  throughout  the  nation,  and  as  interpreted  by 
the  controlling  decisions  of  the  highest  tribunal — the 
United  States  Supreme  Court. 

In  this  part  of  the  treatise,   an  endeavoi"  will  be 
made  to  review  the  beginning  of  federal  control   over 

1.    Cincinnati,  N.  O.  &  T.  P.  Ry.  Ct.    406;    Cleveland,    C,    C.    &   St. 

Co.   V.   Rankin,   241   U.   S.   319,   60  L.  R."  Co.  v.  Dettlebach,  239  U.  S. 

L.  Ed.  1022,  36  Sup.  Ct.  555,  L.  R.  588,    60    L.    Ed.    453,    36    Sup.    Ct. 

A.      1917A     265;        Southern     R.  177;    Central   Vermont   R.    Co.    v. 

Co.  V.  Gray,  241  U.  S.  333,  60  L.  white,   238   U.    S.    507,    59    L.    Ed. 

Ed.  1030,  36  Sup.  Ct.  558;    South-  ^^33^  35   ^^^    ^^    ^^^^  ^  ^    ^    ^ 

em  Exp.  Co.  V.  Byers,  240  U    S.  ^  ^^^      ^^^      ^^^g^     252; 

612,  60  L.  Ed.  825,  36  Sup.  Ct.  410,  ^    » •     t  •       u    n«    ^    u^^ 

'  „.„.    ..^-,      c-     ..u         r>       Seaboard  Air  Line  R.  Co.  v.  Hor- 

L    R    A.  1917A  197;    Southern  R.  _,    ^^„„ 

Co.  V.  Preacott,  240  U.  S.  632,  bO  '  n     n     k 

L    Ed    836,  36  Sup  Ct.  469;   Great  34    Sup.    Ct.    635,    8    N.    C.    C.    A. 

Northern    R.    Co.    v.    Wiles.    240  834,  L.  R.  A.   1915C   i,  Ann.  Caa. 

TT.   S.   444,   60  L.   Ed.   732,   36   Sup.  1915B  475. 


§  53]  Genesis  and  Scope  of  Act.  139 

carriers  by  railroad;  its  expansion  and  development  by 
amendments;  the  carriers  and  character  of  shipments 
subject  to  the  Interstate  Commerce  Act;  the  duties 
placed  upon  interstate  carriers  under  the  provisions 
of  the  statute  and  its  amendments;  the  rights  of  ship- 
pers under  each  of  the  substantive  provisions  of  the  act; 
the  nature,  power  and  jurisdiction  of  the  Interstate 
Commerce  Commission;  the  liabilities  of  initial  carriers 
for  loss  and  damage  on  the  lines  of  connecting  carriers, 
and  the  jurisdiction  and  power  of  the  courts  in  enforcing 
the  provisions  of  the  Interstate  Commerce  Act. 

§  53.  Causes  Leading  to  Enactment  of  the  Act  to 
Regulate  Commerce.  During  the  two  decades  foUow- 
|ing  the  Civil  War  the  railroads  of  the  country  became 
the  principal  instrumentalities  for  the  movement  of 
commerce  from  one  state  to  another  and  to  ports  of 
vtransshipment  for  export  to  foreign  countries.  Profiting 
by  the  generous  laws  of  the  states,  and  municipal  aid 
given  in  the  early  days  of  railroad  construction,  the 
carriers  extended  their  lines  with  wonderful  rapidity 
and  soon  acquired  a  monopoly  of  the  business  of  the 
transportation  of  freight  and  passengers.  Free  from 
federal  control  and  in  a  large  measure  immune  from  the 
statutory  regulations  of  the  state,  the  evils  of  monopo- 
lies soon  began  to  show  themselves. 

The  carriers  scarcely  recognized  that  they  occupied 
a  position  of  public  trust  and  that  their  rail  highways 
were  quasi  public  in  character.  They  continued  to  oper- 
ate their  lines  as  tiiough  they  were  strictly  private 
enterprises  with  no  duties  or  obligations  whatever  to- 
wards the  public,  except,  possibly,  to  carry  the  freight 
of  all  offered  for  shipment.  Rebates  and  concessions 
were  granted,  sometimes  secretly  and  often  openly  to 
large  and  powerful  shippers,  a  practice  which  lead 
often  to  the  ruin  and  bankruptcy  of  small  shippers 
not  enjoying  like  favors.  Discriminations  between 
localities  and  communities  prevailed,  and  rates  to 
favored  communities  much  lower  than  to  other  locali- 
ties  entitled    to    like    treatment,    were    established    and 


140 


Duties  to  Interstate  Shippers. 


[§  53 


maintained.  The  carriers  had  the  unrestricted  power 
to  build  up  one  city  and  to  destroy  another  by  granting 
lower  freight  rates  to  the  former.  Both  shippers  and 
localities  were  helpless  under  this  regime  of  unfetter- 
ed control.  With  a  disregard  of  the  elementary  duties 
of  common  carriers  that  now  seems  amazing,  the  car- 
riers continued  in  the  70 's  and  80 's  to  violate  nearly 
every  tenet  of  the  common  law  as  to  their  obligations 
and  duties.  Different  rates  to  shippers  under  like  condi- 
tions were  collected;  pools  and  combinations  with  each 
other  leading  to  the  oppression  of  entire  communities 
were  effected  and  enforced;  gross  inequalities  between 
cities  and  communities  entitled  to  like  treatment  were 
practiced  and  fixed  rates  for  all  under  like  conditions 
depended  upon  the  whims  of  traffic  managers.  Rail- 
roads were  operated  solely  with  a  view  of  benefiting 
stockholders  and  with  little  regard  for  the  obligations 
due  to  treat  all  shippers  alike  and  without  discrimina- 
tion.^ 


2.  In  its  first  annual  report, 
the  Interstate  Commerce  Com- 
mission, commenting  upon  con- 
ditions of  railway  traffic  in  this 
country  prior  to  the  adoption  of 
the  Interstate  Commerce  Act, 
said:  "The  system  of  making 
special  arrangements  with  ship- 
pers was  in  many  parts  of  the 
country  not  confined  to  large 
manufacturers  and  dealers,  but 
was  extended  from  person  to 
person  under  the  pressure  of  al- 
leged business  necessity,  or  be- 
cause of  personal  inopportunity 
or  favoritism,  and  even  in  some 
cases  from  a  desire  to  relieve 
individuals  from  the  consequen- 
ces of  previous  unfair  concessions 
to  rivals  in  business.  The  re- 
sult was  that  shipments  of  im- 
portance were  commonly  made 
under  special  bargains  entered 
into  for  the  occasion,  or  to  stand 
until  revoked,  of  which  the  ship- 


per and  representative  of  the 
road  were  the  only  parties  hav- 
ing knowledge.  These  arrange- 
ments took  the  form  of  special 
rates,  rebates  and  drawbacks, 
underbilling,  reduced  classifica- 
tion, or  whatever  might  be  adap- 
ted to  keep  the  transaction  from 
the  public;  but  the  public  very 
well  understood  that  private  ar- 
rangements were  to  be  had  if 
the  proper  motives  v.ere  pre- 
sented. The  memorandum  book 
carried  in  the  pocket  of  the  gen- 
eral freight  agent  often  contained 
the  only  record  of  the  rates  made 
to  the  different  patrons  of  the 
road,  and  it  was  in  his  power  to 
place  a  man  or  a  community  un- 
der an  immense  obligation  by 
conceding  a  special  rate  on  one 
day,  and  to  nullify  the  effect 
of  it  the  next  day  by  doing  even 
better  by  a  competitor.  The  sys- 
tem, if  it  can  be  called  such,  in- 


<^  54] 


Genesis  and  Scope  of  Act 


141 


§  54.  Principles  of  the  Common  Law  Inadequate 
to  Curb  Evils  of  Railroad  Operation.  Prior  to  the  en- 
actment of  the  Inte^^^tate  Conunerce  Act,  the  principles 
of  the  common  law  controlled  the  respective  rights 
and  liabilities  of  carriers  and  shippers  of  interstate 
traflic;'''  )jul  tlicse  duties  only  i('(|uii('(l  that   tiie  carriei-s 


volved  a  great  measure  of  sec- 
recy, and  its  necessary  conditions 
were  such  as  to  pre.'ent  effec- 
tive efforts  to  break  it  down, 
though  the  willingness  to  make 
the  effort  was  not  wanting  among 
intelligent  shippers.  It  was  of 
the  ^ast  importance  to  the  ship- 
per that  he  be  on  good  terms  with 
those  who  made  the  rates  he 
must  pay;  to  contend  against 
them  was  sometimes  regarded  as 
a  species  of  presumption  which 
was  best  dealt  with  by  increasing 
burdens;  and  the  shipper  was 
cautious  about  incurring  the  risk. 
Nevertheless  it  was  a  common 
observation,  even  among  those 
who  might  hope  for  special  fav- 
ors, that  a  system  of  rates,  open 
to  all  and  fair  as  between  local- 
ities, would  be  far  preferable  to 
a  system  of  special  contracts,  in- 
to which  so  large  a  personal  ele- 
ment entertained  or  was  com- 
monly supposed  to  enter.  Per- 
manence of  rates  w'as  also  seen 
to  be  of  very  high  importance  to 
every  man  engaged  in  business 
enterprises,  since  without  it 
business  contracts  were  lottery 
ventures.  It  was  also  perceived 
that  the  absolute  sum  of  money 
charges  exacted  for  transporta- 
tion, if  not  clearly  beyond  the 
bounds  of  reason,  was  of  inferior 
importance  in  compaiison  with 
the  obtaining  of  rates  that  should 
be  open,  equal,  relatively  just  as 
between  places,  and  as  steady  as 
in  the  nature  of  things  was  prac- 
ticable." 


3.  Western  U.  Tel.  Co.  v.  ("all 
Pub.  Co.,  181  U.  S.  92,  45  L.  Ed. 
765,  21  Sup.  Ct.  561;  Texas  &  P. 
R.  Co.  V.  Interstate  Commerce 
Commission,  162  U.  S.  197,  40  L. 
Ed.  940,  16  Sup.  Ct.  666;  Inter- 
state Commerce  Commission  v. 
Baltimore  &  0.  R.  Co.,  145  U.  S. 
263,  36  L.  Ed.  699,  12  Sup.  Ct. 
b44.  In  Western  U.  Tel.  Co.  v. 
Call  Pub.  Co.,  supra,  the  Court 
said:  "Common  carriers,  whether 
engaged  in  interstate  commerce 
or  in  that  wholly  within  the 
State,  are  performing  a  public 
service.  They  are  endowed  by 
the  State  with  some  of  its  sover- 
eign powers,  such  as  the  right  of 
eminent  domain,  and  so  endowed 
by  reason  of  the  public  service 
they  render.  As  a  consequence 
of  this,  all  individuals  have  equal 
rights  both  in  respect  to  serv- 
ice and  charges.  Of  course,  such 
equality  of  right  does  not  pre- 
vent differences  in  the  modes  and 
kinds  of  service  and  different 
charges  based  thereon.  There  is 
no  cast  iron  line  of  uniformity 
which  prevents  a  charge  from  be- 
ing above  or  below  a  particular 
sum,  or  requires  that  the  service 
shall  be  exactly  along  the  same 
lines.  But  that  principle  of 
equality  does  forbid  any  differ- 
ence in  charge  which  is  not  based 
upon  difference  in  service,  and 
even  when  based  upon  difference 
of  service,  must  have  come  reas- 
onable relation  to  the  amount  of 
difference,  and  cannot  bo  so  great 
as  to  produce  an   unju.st   discrim- 


142 


Duties  to  Interstate  Shippers. 


54 


carry  for  all  persons  who  applied  in  the  order  in  which 
the  goods  were  delivered  at  the  station,  that  the  charge 
for  transportation  should  be  reasonable  and  that  the 
same  charge  should  be  made  to  all  persons  for  like 
services.*  The  common  law,  however,  did  not  require 
the  publication  or  filing  of  rates  and  prohibit  departures 
therefrom.  It  did  not  prohibit  a  greater  compensation 
for  the  transportation  of  passengers  or  property  for  a 
shorter  than  for  a  longer  distance  over  the  same  line  or 
route  in  the  same  direction.  The  pooling  of  freights 
of  different  railroads  or  agreements  dividing  the  net 
profits  were  not  illegal. 

In  addition,  the  common  law  remedies  for  a  viola- 
tion of  the  duties  of  a  carrier  were  entirely  inadequate. 
If  a  shipper  were  charged  an  unreasonable  sum  for  the 
transportation  of  his  property,  it  is  true  he  had  a  right 
to  recover  by  suit  the  difference  between  a  reasonable 


illation.  To  affirm  that  a  condi- 
tion of  things  exists  under  which 
common  carriers  anywhere  in  the 
country,  engaged  in  any  form 
of  transportation,  are  relieved 
from  the  burdens  of  these  obliga- 
tions, is  a  proposition  which,  to 
say  the  least,  is  startling.  And 
yet,  as  we  have  seen,  that  is 
precisely  the  contention  of  the 
telegraph  company.  It  contends 
that  there  is  no  Federa.  common 
law,  and  that  such  has  been  the 
ruling  of  this  court;  there  was 
no  Federal  statute  law  at  the 
time  applicable  to  this  case,  and 
as  the  matter  is  interstate  com- 
merce, wholly  removed  from 
state  jurisdiction,  the  conclusion 
is  reached  that  there  is  no  con- 
trolling law,  and  the  question  of 
rates  is  left  entirely  tc  the  judg- 
ment or  whim  of  the  telegraph 
company.  *  *  *  There  is  no 
body  of  Federal  common  law 
separate  and  distinct  from  the 
common  law  existing  in  the  sev- 
eral States  in  tht  sense  that  there 


is  a  body  of  statute  law  enacted 
by  Congress  separate  and  distinct 
from  the  body  of  statute  law  en- 
acted by  the  several  States.  But 
it  is  an  entirely  different  thing 
to  hold  that  there  is  no  common 
law  in  force  generally  throughout 
the  United  States,  and  that  the 
countless  multitude  of  interstate 
commercial  transactions  are  sub- 
ject to  no  rules  and  burdened  by 
no  restrictions  other  than  those 
expressed  in  the  statute  of  Con- 
gress." 

4.  Interstate  Commerce  Com- 
mission V.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.,  167  U.  S.  479,  42 
L.  Ed.  243,  17  Sup.  Ct.  896; 
United  States  ex  rel.  Morris  v. 
Delaware,  L.  &  W.  R.  Co.,  40  Fed. 
101;  Hand/  v.  Cleveland  &  M.  R. 
Co.,  31  Fed.  689;  Burlington,  C. 
R.  &  N.  Ry.  Co.  V.  Northwestern 
Fuel  Co.,  31  Fed.  G52;  Menacho  v. 
Ward,  27  Fed.  529;  John  Hays 
&  Co.  v.  Pennsylvania  Co.,  12  Fed. 
309. 


§  54] 


Genesis  and  Scope  of  xVct. 


143 


sum  and  the  unreasonable  rate  cliarged,  l)ut  a  recovery 
did  not  prevent  a  repetition  of  the  same  charge  for  a 
subsequent  transportation.  'I'lie  expense  and  cost  of 
litigating  the  roasonal)leness  of  a  rate  for  each  ship- 
ment compared  with  the  advantages  gained  to  the 
shipper,  rendered  litigation  almost  prohibitive,  and  the 
practical  result,  under  the  common  law,  was  that  the 
requirement  of  a  reasonable  rate  was  not  such  as  to 
deter  the  carriers  from  continuing  to  make  and  collect 
unlawful  rates  and  charges/  That  the  remedies  at 
common  law  were  inadequate  was  also  the  conclusion 
of  the  CuUom  Committee  after  a  country-wide  investiga- 


5.  In  its  first  annual  report, 
the  Interstate  Commerce  Com- 
mission said:  "The  common  law 
still  remained  operative,  but 
there  were  many  reasons  why  it 
was  inadequate  for  the  purposes 
of  complete  regulation.  One 
very  obvious  reason  was  that  the 
new  method  of  land  transporta- 
tion was  wholly  unknown  to  the 
common  lav/,  and  was  so  differ- 
ent from  those  under  which  com- 
mon law^  rules  had  grown  up,  that 
doubts  and  differences  of  opinion 
as  to  the  extent  to  v  hich  those 
rules  could  be  made  applicable 
were  inevitable.  A  highway  of 
which  the  ownership  is  in  pri- 
vate citizens  or  corporations  who 
permit  no  other  vehicles  but  their 
own  to  run  upon  it  bears  obvious- 
ly but  faint  resemblarce  to  the 
common  highway  upon  which 
every  man  may  walk  or  ride  or 
drive  his  wagon  or  carriage.  It 
we  undertake  to  apply  to  the  one 
the  rules  which  have  grown  up 
in  relation  to  the  other,  there 
must  necessarily  be  a  consider- 
able period  in  which  the  State 
law  will,  in  many  important  par- 
ticulars, be  uncertain  and  while 
that    contini.es    to    be    the    case, 


those  who  have  the  power  to  act 
and  must  necessarily  act  by  rule 
and  according  to  some  estab- 
lished system,  will  for  all  prac- 
tical purposes  make  the  law,  be 
cause  the  rule  and  the  system 
will  be  of  their  establishment. 
Such,  to  a  considerable  extent 
was  the  fact  regarding,  the  busi- 
ness of  transportatii  g  persons 
and  property  by  rail.  Those  who 
controlled  the  railroads  not  only 
made  rules  for  the  government 
of  their  own  corporate  affairs, 
but  very  largely  also  they  de- 
termined at  pleasure  what  should 
be  the  terms  of  their  contract  re- 
lations with  others,  and  others 
have  acquiesced,  though  often 
times  unwillingly,  because  they 
could  not  with  confidence  affirm 
that  the  law  would  not  compel  it. 
and  a  test  of  the  question  would 
be  difficult  and  expensive.  The 
carriers  of  the  country  were  thus 
enabled  to  determine  in  great 
measure  what  rules  should  gov- 
ern the  transportation  of  per- 
sons and  property;  rules  which 
intimately  concerned  the  com- 
mercial, industrial,  and  social 
life    of    the    people." 


14J:  Duties  to  Inteestate  Shippees.  [^  54 

tion.°  That  Committee,  in  its  report  to  Congress,  said: 
"If  it  is  fomid  that  the  common  law  and  the  courts  do 
not,  in  fact,  alTord  to  the  shipper  an  effective  remedy 
for  his  grievances,  we  have  no  need  to  inquire  to  what 
extent  grievances  may  exist.  The  complicated  nature 
of  the  countless  transactions  incident  to  the  business  of 
transportation  make  it  inevitable  that  disagreements 
should  arise  between  the  parties  in  interest,  and  it  is 
neither  just  nor  proper  that  disputed  questions  material- 
ly affecting  the  business  operations  of  a  shipper  should 
be  left  to  the  final  determination  of  those  representing 
an  opposing  financial  interest.  When  such  disagree- 
ments occur  the  shipper  and  the  carrier  are  alike  en- 
titled to  a  fair  and  impartial  determination  of  the 
matters  at  issue,  and  by  all  the  principles  governing 
judicial  proceedings  the  most  fair-minded  railroad  of- 
ficials is  disqualified  by  his  personal  interest  in  the 
result  from  giving  such  a  determination.  If,  however, 
there  existed  an  impartial  tribunal  to  which  the  shipper 
could  readily  appeal,  he  would  find  less  occasion  for 
appealing  from  the  decision  of  the  carrier,  and  dif- 
ferences between  shipper  and  carrier  would  be  more 
likely  to  be  adjusted  amicably  without  such  an  appeal. 
The  simple  fact  that  the  shipper  is  now  obliged  to 
submit  to  the  adjudication  of  his  complaint  by  the  other 
party  in  interest,  the  party  by  whom  he  supposes  him- 
self to  have  been  aggrieved,  is  in  itself  sufficient  to 
demonstrate  the  necessity  of  such  legislation  as  will 
secure  to  the  shipper  that  impartial  hearing  of  his  com- 
plaints to  w^hich  he  is  entitled  by  all  the  recognized 
principles  of  justice  and  equity.  Evidence  is  not  want- 
ing to  prove  that  the  remedy  at  common  law  is  im- 
practicable and  of  little  advantage  to  the  ordinary  ship- 
per. It  has  been  found  so  by  the  people  of  the  States 
in  dealing  with  their  local  traffic,  and,  as  has  been 
shown,  their  recognition  of  the  fact  has  been  authorita- 
tively recorded  in  nearly  every  State  in  the  Union  by 
statutory  enactments,  and  in  many  of  them  by  the  es- 

6.    Section    59,   infra. 


§  55]  Gknksis  and  Scope  of  Act.  145 

tabliHlimcut  of  commissions,  in  the  effort  to  provide  for 
the  shipper  tliat  prompt  and  effective  remedy  wliicli 
it  has  been  found  by  experience  that  recourse  to  tlie 
common  law  has  failed  to  afford.  The  reasons  for  this 
failure  apply  with  even  greater  force  to  the  more  com- 
plicated transactions  of  interstate  commerce  than  to 
State  traffic,  because  the  former  involved  more  perplex- 
ing questions  and  are  affected  by  a  greater  diversity 
of  varying  conditions.  The  legislation  of  the  States, 
the  reports  of  the  State  commissions,  the  records  of  the 
courts,  the  evidence  of  shippers,  and,  in  short,  the  whole 
current  of  testimony,  is  to  the  same  effect;  and  the  fact 
stated  is  also  admitted  by  some  of  the  highest  rail- 
road authorities." 

§  55.  Futile  Attempts  of  the  States  to  Regulate 
Charges  for  Interstate  Transportation.  Tjong  before 
Congress  awoke  to  the  necessit}'  of  legislativ(^  enact- 
ment to  prevent  the  continuous  wrongs  of  carriers 
towards  shippers,  many  of  the  states  attempted  to 
supply  the  defects  of  the  common  law  by  statutory 
enactments.  In  some  states  the  legislative  assemblies 
attempted  to  pass  statutes  fixing  rates  even  on  ship- 
ments to  other  states,  while  in  others  administrative 
bodies,  commonly  known  as  railroad  commissioners, 
were  created  with  more  or  less  control  over  the  rates 
and  charges  of  the  carriers;  but  with  the  conflicting 
rules  and  regulations  of  each  state,  and  the  dou1)t  as 
to  the  extent  of  the  authority  of  the  states  over  inter- 
state carriers,  little  was  accomplished  to  curb  the  evils 
then  existing  in  the  railroad  transportation  of  the 
country.^  ''In  the  exercise  of  their  undoubted  right 
to  regulate,  the  States  have  been  hampered  by  their 
inability  to  apply  their  regulations  to  interstate  com- 
merce, which  comprises,  in  most  instances,  the  greater 

7.     A  summary  of  the   laws  of  in   Interstate   Commerce   Commis- 

the     states     regulating     common  sion  v.  Cincinnati,  N.  O.  &  T.  P. 

carriers    is    given    in    the    Fourth  Ry.  Co.,  167  U.  S.  479,  42  L.   Ed. 

Annual   Report   of   the   Interstate  243,  17  Sup.  Ct.  896. 
Commerce   Commission,   and   also 

1  Control  CanlPrs  10 


146  Duties  to  Interstate  Shippers.  [*§>  55 

portion  of  tlie  business  transacted  within  tlieir  borders 
by  railroads.  The  essence  of  the  effective  regulation  of 
business  transactions  is  equality  and  uniformity,  and 
this  is  impossible  as  to  two  transactions  alike  in  every 
other  respect  when  one  reaches  across  a  State  line  and 
the  other  does  not.  In  the  controversies  that  naturally 
arose  over  these  questions  in  different  States,  as  the 
records  of  the  courts  demonstrate,  the  railroad  com- 
panies have  not  hesitated  at  every  opportunity  to  insist 
upon  and  take  advantage  of  the  exclusive  power  of 
Congress  to  regulate  interstate  commerce.  And,  on  the 
other  hand,  the  records  of  Congress  show  that  they 
have  been  equally  swift  to  maintain  and  to  deprecate 
interference  with  the  rights  of  the  States  whenever  na- 
tional regulation  has  been  proposed.  With  its  authority 
restricted  to  less  than  half  of  the  business  operations 
of  the  transportation  companies  subject  to  its  juris- 
diction, the  obstacles  encountered  by  a  State  in  the  exer- 
cise of  a  satisfactory  supervision  over  the  railroads 
engaged  in  business  within  its  borders  and  in  the  ad- 
ministration of  equal  justice  to  all  its  citizens  who 
might  use  them  are  apparent.  When  these  difficulties, 
witli  all  the  op|)ortunities  they  present  for  evasion  of 
the  State's  authority,  are  understood,  it  is  not  a  matter 
of  wonder  that  the  various  State  commissions  should 
fail  to  accomplish  all  tliat  has  been  expected  of  them, 
bui  it  is  rather  a  matter  of  surprise  that  they  should 
have  succeeded  in  bringing  about  the  beneficial  results 
which  are  acknowledged  as  a  result  of  their  labors."^ 

§  56.  Effect  of  the  Decision  in  Wabash,  St  L.  & 
P.  Ry.  Co.  V.  Illinois.  An  increased  demand  for  feder- 
al regulation  of  interstate  carriers  followed  the  decision 
of  the  United  States  Supreme  Court  in  the  Wabash 
case^  holding  that  the  powers  of  a  state  were  limited 
to    the    regulation    of    rates    and    charges    for    freight 

8.  Report   of   Cullom    Commit-       v.  People,  118  U.  S.  .557,  30  L.  Ed. 
tee.  section   59,  infra.  244.  7  Sup.  Ct.  4. 

9.  Wabash,  St.  L.  &  P.  Ry.  Co. 


§  57]  Genksis  and  Scope  of  Act.  147 

transportation  beginning  and  ending  within  its  limits. 
The  growing  practice  of  charging  unreasonable  rates 
and  discriminating  between  shippers  and  localities  re- 
ceived a  new  impetus  when  the  carriers  found  themselves 
free  from  the  danger  of  penalties  prescribed  by  state 
laws.  The  urgent  reciuirement  of  governiiiental  control 
and  regulation  was  now  ])lainly  evident,  for  the  abuses 
of  railroad  operation,  under  the  decision  in  tlie  AVabash 
case,  could  not  be  curbed  by  state  control  and  regula- 
tion. 

§  57.  Power  of  Congress  to  Regulate  the  Duties 
of  Carriers  of  Interstate  Traffic.  The  Constitution 
delegates  to  Congress  the  power  "to  regulate  commerce 
with  foreign  nations,  among  the  several  states  and 
with  the  Indian  Tribes."  Long  before  the  Act  to 
Regulate  Commerce  was  passed,  this  provision  of  the 
Constitution  had  been  judically  construed  and  inter- 
preted by  the  Supreme  Court  as  authorizing  the  widest 
latitude  to  Congress  in  prescribing  the  rules  by  which 
commerce  might  be  transported  from  one  state  to  another 
or  to  foreign  countries..  This  power,  it  was  lield,^° 
was  complete  in  itself,  might  be  exercised  to  its  utmost 
extent  and  acknowledge  no  limitation,  and  was  vested 
in  Congress  as  absolutely  as  it  would  be  in  a  single 
government.  The  authority  of  Congress,  under  this 
clause  of  the  Constitution,  extends  to  every  part  of 
interstate  commerce  and  to  every  instrumentality 
and  agency  by  which  it  is  carried  on.^^ 

In  so  far  as  their  interstate  traffic  is  concerned,  rail- 
roads are  but  agencies  used  in  its  transportation  from 
one  state  to  another.  Unreasonable  rates,  practices, 
charges  and  classifications,  and  unjust  discriminations 
and  preferences  in  any  form  between  shippers  of  inter- 
state freight  are,  therefore,  burdens  upon  interstate  com- 
merce which  Congress  may  regulate  or  prohibit.  So  clear- 
ly were  the  provisions  of  the  original  Act  to  Regulate 

10.  Gibbons  v.  Ogden,  9  Wheat.       230  U.   S.  352.  57  L.  Ed.  1511.  33 
(U.  S.)    1,   C   L.   Ed.  23.  Sup.  Ct.  729.  48  L.  R.  A.    (N.   S.) 

11.  The   Minnesota  Kate  Cases,       1151,  Ann.  Cas.  1916A  IS. 


148  Duties  to  Interstate  Shippers.  [§57 

Commerce  considered  to  be  witliin  the  domain  of  the 
power  given  to  Congress  to  regulate  commerce  among  the 
states,  that  no  serious  attempt  was  made  to  have  it  de- 
clared invalid.  In  holding  that  the  means  therein  adopted 
by  Congress  to  protect  interstate  commerce  from  un- 
necessary burdens  were  a  matter  of  legislative  discretion, 
the  Supreme  Court  said:^-  "Interpreting  the  Interstate 
Commerce  Act  as  applicable,  and  as  intended  to  apply, 
only  to  matters  involved  in  the  regulation  of  commerce, 
and  which  Congress  may  rightfully  subject  to  investiga- 
tion by  a  commission  established  for  the  purpose  of 
enforcing  that  act,  we  are  unable  to  say  that  its  pro- 
visions are  not  appropriate  and  plainly  adapted  to  the 
protection  of  interstate  commerce  from  burdens  that 
are  or  may  be,  directly  and  indirectly,  imposed  upon 
it  by  means  of  unjust  and  unreasonable  discriminations, 
charges,  and  preferences.  Congress  is  not  limited  in 
its  employment  of  means  to  those  that  are  absolutely 
essential  to  the  accomplishment  of  objects  within  the 
scope  of  the  powers  granted  to  it.  It  is  a  settled  prin- 
ciple of  constitutional  law  that  'the  government  which 
has  a  right  to  do  an  act,  and  has  imposed  on  it  the  duty 
of  performing  that  act,  must,  according  to  the  dictates 
of  reason,  be  allowed  to  select  the  means;  and  those 
who  contend  that  it  may  not  select  any  appropriate 
means,  that  one  particular  mode  of  aifecting  the  object 
is  excepted,  take  upon  themselves  the  burden  of  estab- 
lishing that  exception.'  4  Wheat.  316,  409.  The  test 
of  the  power  of  Congress  is  not  the  judgment  of  the 
courts  that  particular  means  are  not  the  best  that  could 
have  been  employed  to  affect  the  end  contemplated  by 
the  legislative  department.  The  judiciary  can  only 
inquire  whether  the  means  devised  in  the  execution 
of  a  power  granted  are  forbidden  by  the  Constitution. 
It  cannot  go  beyond  that  inquiry  without  entrenching 
upon  the  domain  of  another  department  of  the  govern- 
ment.    That  it  may  not  do  with  safety  to  our  institu- 

12.    Interstate    Commerce    Com-      mission  v.  Brimson,  154  U.  S.  447, 

38  L.  Ed.  1047,  14  Sup.  Ct.  1125. 


§  58]  Genesis  and  Scope  of  Act.  149 

tious.  Sinking  Fund  Cases,  99  U.  S.  700,  718.  An 
adjudication  that  Congress  could  not  establish  an  ad- 
ministrative body  with  authority  to  investigate  the  sub- 
ject of  interstate  commerce  and  with  power  to  call 
witnesses  before  it,  and  to  require  the  production  of 
books,  documents,  and  papers  relating  to  that  subject, 
would  go  far  towards  defeating  the  object  for  which 
the  people  of  the  United  States  placed  commerce  among 
the  States  under  national  control.  All  must  recognize 
the  fact  that  the  full  information  necessary  as  a  basis 
of  intelligent  legislation  by  Congress  from  time  to  time 
upon  the  subject  of  interstate  commerce  cannot  be  ob- 
tained, nor  can  the  rules  established  for  the  regulation 
of  such  commerce  be  efficiently  enforced,  otherwise 
than  through  the  instrumentality  of  an  administrative 
body,  representing  the  whole  country,  always  watch- 
ful of  the  general  interests,  and  charged  with  the  duty 
not  only  of  obtaining  the  required  information,  but 
of  compelling  by  all  lawful  methods  obedience  to  such 
rules." 

§  58.  First  Step  Towards  Federal  Regulation  of 
Interstate  Transportation  by  Rail — The  Cullom  Com- 
mittee. The  United  States  Senate,  on  March  17,  1885, 
adopted  a  resolution  authorizing  the  President  to  appoint 
a  select  committee  of  live  senators  to  investigate  and 
report  upon  the  subject  of  the  regulation  of  transporta- 
tion by  railroad  and  water  routes  in  connection  or  in 
competition  with  railroads,  of  freight  and  passengers 
between  the  several  states,  with  authority  to  sit  during 
the  recess  of  Congress,  and  with  power  to  summon 
witnesses  and  to  make  a  thorough  investigation  and  to 
report  to  the  Senate.  Pursuant  to  this  resolution, 
President  Cleveland  on  March  21,  1885  appointed  Sena- 
tors Cullom,  Miller,  Piatt,  Gorman  and  Harris,  and  this 
body  was  thereafter  known  and  referred  to  as  the  Cullom 
Committee.     A  country-wide  investigation  followed. 

The  committee  held  hearings  in  various  towns  and 
cities  all  over  the  Ignited  States  with  a  view  of  determin- 
ing and  recomnuMiding  to  Congress  the  best  measures 


150  Duties  to  Interstate  Shippers.  [§  58 

for  correcting  the  then  evils  of  railroad  transportation. 
Preliminary  to  the  investigation,  the  committee  issued 
and  published  a  circular  calling  for  certain  informa- 
tion that  would  be  of  practical  value  to  Congress  in 
framing  legislation  for  the  regulation  of  commerce 
between  the  several  states.  These  inquiries  called  for 
information  as  to  the  best  method  of  preventing  extor- 
tion and  unjust  discriminations  by  corporations  en- 
gaged in  interstate  commerce,  whether  publicity  of  rates 
should  be  required  by  law,  the  advisability  of  estab- 
lishing a  system  of  maximum  and  minimum  rates, 
whether  rebates  and  drawbacks  should  be  regulated  by 
law  or  entirely  prohibited,  whether  a  lower  propor- 
tionate rate  should  be  charged  for  a  long  than  for  a 
short  haul,  the  advisability  of  requiring  carriers  to  adopt 
a  uniform  sj'stem  of  accounts,  and  to  make  annual  re- 
ports to  the  Government,  and  in  what  manner  national 
legislation  for  the  regulation  of  interstate  traffic  should 
be  best  enforced.  The  testimony  before  the  committee 
was  preserved  and  printed  as  a  part  of  its  report." 

§  59.  Report  of  CuUom  Committee  to  Congress  and 
Bill  Recommended  on  January  18,  1886.  The  Cullom 
Committee  as  a  result  of  its  investigation  introduced 
in  Congress  a  bill  for  the  regulation  of  interstate  car- 
riers by  rail.  This  measure,  with  minor  amendments, 
became  a  law  on  February  4,  1887.  It  was  popularly 
known  as  the  Cullom  Act  but  was  officially  designated 
as  the  Act  to  Regulate  Commerce."  "This  measure,"  said 
the  Committee  in  introducing  the  bill,^^  "is  not  offered 
as  a  panacea  for  all  the  evils  growing  out  of  the  manage- 
ment of  the  transportation  system  of  which  the  people 
have  for  years  complained,  and  for  which  they  are 
disposed  to  seek  a  legislative  cure.  Indeed,  as  we  have 
already  said,  'That  a  problem  of  such  magnitude,  impor- 
tance, and  intricacy  can  be  summarily  solved  by  any 
master-stroke  of  legislative  wisdom  is  beyond  the  bounds 

13.  Senate  Report  No.  46,  Part  15.    Senate  Report  No.  4G,  Part 
2,  Ist  Session,  49th  Congress.                1,   1st   Session,   49th   Congress. 

14.  Appendix    A,  infra. 


§  59J  Genesis  and  Scope  oe  Act.  151 

of  reasonable  belief. '  Xeillier  is  it  siinijly  a  tenative 
measure  iiileiided  to  jtave  tiie  way  for  additional  legis- 
lation. Its  practical  application,  if  it  should  become  a 
law,  may  demonstrate  that  some  of  its  features  are  in- 
expedient, or  unjust  to  the  corporate  carriers  of  the  coun- 
try, or  prejudicial  to  the  public  interests.  While  there 
have  naturally  been  differences  of  opinion  among  the 
members  of  the  committee  as  to  certain  of  the  less  imi)ort- 
ant  features  and  provisions  of  the  bill  in  its  entirety,  and 
in  its  general  scope,  purposes,  and  methods,  it  rep- 
resents the  substantially  unanimous  judgment  of  the 
committee  as  to  the  regulations  which  are  believed 
to  be  expedient  and  necessary  for  the  government  and 
control  of  the  carriers  engaged  in  interstate  traffic.  The 
provisions  of  the  bill  are  based  upon  the  theory  that 
the  paramount  evil  chargeable  againsi  ihc  operation 
of  the  transportation  system  of  the  United  States  as 
now  conducted  is  unjust  discrimination  between  persons, 
places,  commodities,  or  i)articular  descriptions  of.  traffic. 
The  underlying  purpose  and  aim  of  the  measure  is 
the  prevention  of  these  discriminations,  both  by  declar- 
ing them  unlawful  and  adding  to  the  remedies  now  avail- 
able for  securing  redress  and  enforcing  punishment, 
and  also  by  requiring  the  greatest  practicable  degree  of 
publicity  as  to  the  rates,  financial  operations,  and 
methods  of  management  of  the  carriers." 

The  committee  also  submitted  an  exhaustive  and 
elaborate  report,  now  known  as  the  Cullom  report, 
which  contained  a  review  of  the  growth  and  extent  of 
the  railroad  systems  of  the  United  States;  the  magni- 
tude of  the  railway  service;  the  internal  commerce  of 
the  United  States  as  illustrated  in  the  traffic  of  the 
trunk  lines,  both  east  and  west  bound:  the  relation  of 
commerce  to  agriculture;  the  power  of  Congress  to 
regulate  commerce,  together  with  a  synopsis  of  the 
decisions  of  the  United  States  courts  on  the  subject;  the 
legal  status  of  common  carriers  and  the  obligations 
imposed  uj^on  them  by  reason  of  their  publi<>  nature 
nnd  the  exercise  of  public  functions;  the  difficulties 
of    effective    state    regulations;    the    evils    of    railroad 


152  Duties  to  Interstate  Shippeks.  [§  59 

operation  as  exemplified  by  an  irresponsible  manage- 
ment and  fictitious  capitalization;  the  various  methods 
of  railroad  regulation  including  the  work  of  the  Eng- 
lish commission;  a  summary  of  the  provisions  of  state 
statutes  then  in  effect  for  the  regulation  of  railroads; 
the  comparative  volume  of  state  and  interstate  traffic; 
the  relation  between  water  routes  and  railroads  with 
a  plea  for  their  complete  emancipation;^"  the  necessity 
of  national  legislation  for  the  regulation  of  interstate 
commerce;  the  causes  of  complaints  against  the  rail- 
road system;  the  principles  upon  which  railroad  rates 
should  be  established  and  the  limitations  upon  discrimi- 
nations; the  advisability  of  the  publicity  of  rates  by 
posting  as  a  means  of  preventing  unjust  discriminations, 
and  the  necessity  for  the  establishment  of  a  national 
commission  for  the  enforcement  of  the  prop(Tsed  legis- 
lation. 

§  60.  Fundamental  Requirements  of  the  Act  to 
Regulate  Commerce  as  Originally  Enacted  in  1887. 
The  original  Act  to  Regulate  Commerce  consisted  of  two 
parts — substantive  and  procedural.  The  former  placed 
certain  duties  upon  railroads  engaged  in  the  transporta- 
tion of  interstate  and  foreign  traffic,  while  the  latter 
provided  the  means  and  methods  by  which  those  duties 
might  be  effectually  enforced  and  observed.  The 
leading  and  prominent  features  of  the  act  are  herein 
briefly  reviewed.  Section  1  of  the  Act  provided  that 
the  statute  was  applicable  to  all  common  carriers 
engaged  in  transportation  wholly  by  railroad  or  partly 
by  water  and  partly  by  railroad  under  a  common  con- 
trol or  management,  from  one  state  to  another  or  from 
any  place  in  the  United  States  to  a  foreign  country, 
and  further  prescribed  that  all  charges  made  by  such 
carriers  for  transportation  services  must  be  reasonable 
and  just.  Sections  2  and  3  prescribed  that  the  same 
charges  must  be  made  for  a  like  and  contemporaneous 

16.    This    proposal    was    not    a-      Panama   Canal   Act  in   19.12. 
dopted    until    the   passage   of   the 


§  60]  Genesis  and  Scope  of  Act.  153 

service  and  prohibited  any  undue  or  unreasonable  pref- 
erence between  persons,  localities  or  kinds  of  traffic. 
Section  4  prohibited  carriers  from  charging  more  for 
transportation  for  a  shorter  than  for  a  longer  distance 
over  the  same  line  in  the  same  direction  under  substanti- 
ally similar  circumstances  and  conditions. 

All  contracts  and  combinations  for  tlie  pooling  of 
freights  of  competing  railroads,  or  dividing  the  earnings 
between  them,  were  declared  unlawful  by  Section  5. 
Section  6  required  all  carriers  subject  to  the  act  to 
print  and  keep  open  for  public  inspection  all  their  tariffs 
for  the  transportation  of  persons  and  property,  and 
provided  that  no  advance  in  rates  could  be  made  without 
ten  days'  public  notice,  but  a  reduction  in  rates  might 
be  made  to  take  effect  at  once,  the  notice  of  the  same 
to  be  immediately  and  publicly  given.  Copies  of  all 
tariffs  were  required  to  be  filed  with  the  Interstate 
Commerce  Commission  as  well  as  all  contracts  or  agree- 
ments between  carriers  in  relation  to  traffic  affected  by 
the  Act.  Notices  of  all  changes  in  the  tariffs  were  also 
required  to  be  filed.  Section  7  prohibited  any  combina- 
tion or  device  which  would  prevent  the  carriage  of 
freight  from  being  continuous  from  the  place  of  ship- 
ment to  the  place  of  destination.  Section  8  provided 
that  any  common  carrier  violating  any  of  the  pro- 
visions of  the  Act  should  be  liable  to  any  person  in- 
jured thereby  to  the  full  amount  of  his  damages,  together 
with  a  reasonable  attorney's  fee.  Sections  9  to  24 
inclusive  related  largely  to  matters  of  procedure  and 
the  enforcement  of  the  substantive  provisions  of  the  Act. 
For  example,  by  Section  11,  the  Interstate  Commerce 
Commission  was  created  and  established  to  be  composed 
of  five  members  to  be  appointed  by  the  President  with 
the  advice  and  consent  of  the  senate,  for  a  tenn  of  six 
years.  Sections  12,  13  and  14  gave  certain  powers  to 
the  Interstate  Commerce  Commission.  The  foregoing 
is  by  no  means  a  complete  resume  of  the  provisions  of 
the  original  Act,  but  gives  the  reader  a  general  survey 
of  the  field  and  subject  matter  covered  by  the  statute. 


154  Duties  to  Interstate  Shippers.  L§  ^1 

§  61.  Purpose  of  Congress  in  Enacting  Original 
Act  to  Regulate  Interstate  Commerce.  The  leading 
purpose  of  Congress  in  the  enactment  of  the  original 
Act  to  Eegulate  Commerce  in  1887  was  to  establish 
and  impose  upon  railroads  engaged  in  interstate  com- 
merce the  duty  of  making  their  charges  for  trans- 
portation services  rendered,  reasonable  and  just,  and  to 
prohibit  unjust  discriminations,  preferences,  partiality 
and  inequality  between  persons,  traffic  and  localities 
similarly  situated. ^^  One  of  the  means  employed  by 
Congress  to  secure  these  results  was  the  placing  upon  all 
carriers  subject  to  the  statute  the  duty  to  establish  and 
publish  schedules  of  rates  which  should  have  a  imiform 
application  to  all  and  which  should  not  be  departed 
from  so  long  as  the  established  schedule  remained  un- 
altered in  the  manner  provided  by  the  law.^* 

The  building  up  of  one  locality  at  the  expense 
of  another  by  rates  favoring  the  former,  was  one  of 
the  evils  which  Congress  sought  to  destroy.''  "The 
principal  objects  of  the  Interstate  Commerce  Act," 
said  the  United  States  Supreme  Court  in  another  case,-" 
"were  to  secure  just  and  reasonable  charges  for  trans- 

17.    United      States      v.      Union  tl5  Fed.  903;    Interstate  Commerce 

Stock  Yard  &  Transit  Co.  of  Chi-  Commission  v.  Baltimore  &  O.  K. 

cago,  22ti  U.  S.  286,  57  L.  Ed.  226,  Co.,  43  Fed.  37. 
33   Sup.   Ct.  83;    Chicago   &  A.   R.  18.    Texas   &   P.    R.    Co.   v.   Abi- 

Co.    V.    Kirby,    225    U.    S.    155,    56  lenc    Cotton    Oil    Co.,    204    U.    S. 

L.  Ed.  1033,  32  Sup.  Ct.  648,  Ann.  426,    51    L.    Ed.    553,    27    Sup.    Ct. 

Cas.   1914A   501;     Interstate  Com-  350,  9  Ann.  Cas.   1075;    Interstate 

merce  Commission  v.  Chicago,  R.  Commerce  Commission   v.   Cincin- 

I.   &  P.   R.   Co.,   218   U.    S.   88,    54  nati,   N.   O.   &  T.   P.   Ry.   Co.,   167 

L.  Ed.  946,  30  Sup.  Ct.  651;    New  U.   S.  479,  42  L.  Ed.  243,  17  Sup 

York,  N.  H.  &  H.  R.  Co.  v.  Inter-  Ct.  896;   Cincinnati,  N.  O.  &  T.  P. 

state   Commerce   Commission,   200  R.    Co.    v.    Interstate    Commerc*^ 

U.  S.  361,  50  L.  Ed.  515,  26   Sup.  Commission,  162  U.  S.  184,  40   L. 

Ct.     272;      Interstate     Commerce  Ed.  935,  16  Sup.  Ct.  700. 
Commission  v.  Baltimore  &  0.  R  19.    Board    of   Trade    of   Harap- 

Co.,  145  U.  S.  263,  36  L,  Ed.  699,  ton,  Florida  v.  NashviUe,  C.  &  St. 

12  Sup.  Ct.  844;   Kinnavey  v.  Ter  L.  Ry.  Co.,  8  I.  C.  C.  503. 
minal   R.   R.   Ass'n.   of   St.   Louis,  20.    Interstate    Commerce    Com- 

81    Fed.    802;        United    States    v.  mission  v.  Baltimore  &  0.  R.  Co.. 

Hanley,     fl     Fed.     672;      United  145   U.   S.   263,   36    L.    Ed.    699,    12 

States   V.   Missouri   Pac.   Ry.   Co.,  Sup.  Ct.  844. 


§  62]  Genesis  axo  Scope  of  Act.  155 

])ortatioii;  (o  prohibit  unjust  dij^crimiiialioiis  in  tiie 
rendition  of  like  services  under  similar  circumstances 
and  conditions;  to  pre\ent  undue  or  unreasonable  pref- 
erences to  persons,  cori)()rations  or  localities;  to  in- 
hibit greater  compensation  for  a  shorter  than  for  a 
longer  distance  over  the  same  line;  and  to  abolish 
combinations  for  the  pooling  of  freights.  It  was  not 
designed,  however,  to  prevent  competition  between 
different  roads,  or  to  interfere  with  the  customary 
arrangements  made  by  railway  companies  for  reduced 
fares  in  consideration  of  increased  mileage,  where  such 
reduction  did  not  operate  as  an  unjust  discrimination 
against  other  persons  travelling  over  the  road."-^ 

§  62.  How  the  Interstate  Commerce  Act  should 
be  Construed  and  Interpreted.  As  the  great  purpose 
of  the  original  act  was  to  secure  equality  of  rates  to 
all  and  favoritism  to  none  by  requiring  the  publication 
of  tariffs  and  prohibiting  departures  therefrom,  and  by 
forbidding  rebates,  unjust  preferences  and  all  other 
forms  of  undue  discriminations,  the  statute  is,  there- 
fore, remedial  and  should  receive  an  interpretation  by 
the  Commission  and  the  courts  which  reasonably  accom- 
plishes the  public  purpose  which  it  was  enacted  to  sub- 
serve." But  interstate  commerce  is  one  of  the  most 
important  subjects  of  national  legislation,  and  the  courts 
will,  in  the  interpretation  of  the  statute,  attribute  to 
Congress  an  intention  to  promote  and  facilitate,  not  to 
hamper  or  destroy  the  movement  of  commerce  from  one 
state  to  another.^''  The  statute  should  be  liberally  con- 
strued in  favor  of  commerce  among  the  states." 

21.  See  also  Southern  R.  Co.  v.  M.  &  St.  P.  Ry.  Co.,  81  Fed.  545; 
Reid,  222  U.  S.  424,  56  L.  Ed.  257,  Kentucky  &  I.  Bridge  Co.  v.  Loui3- 
32  Sup.  Ct.  140:  Armour  Pack-  yille  &  N.  R.  Co.,  37  Fed.  567.  2 
ing  Co.  V.  United  States,  209  U.  S.  l    R    A    289 

56.  52  L.  Ed.  681,  28  Sup.  Ct.  428.         \.^'    r^^^^^   &   V.   R     Co.    v     In- 

22.  New  York.   N.  H.  &  H.   R 


terstate  Commerce  Commission. 
162  U.  S.  197,  40  L.  Ed.  940,  16 
Sup.  Ct.   J66. 


Co.  V.  Interstate  Commerce  Com- 
mission, 200  U.  S.  361,  50  L.  Ed. 
515,  26  Sup.  Ct.  272;  Interstate 
Commerce     Commission     v.     East  24.    Kentucky    &    T.    Bridge    Co. 

Tennessee    V.    &    G.    Ry.  Co.,    85      v.  Louisville  &  N.  R.  Co..  37  Fed. 
Fed.  107;    Van  Patten  v.  Chicago,      567,  2  L.  R.  A.  289. 


156  Duties  to  Interstate  Shippees.  [§62 

The  intent  of  Congress  must  be  gatliered  from  tlie 
entire  statute  and  not  from  detached  portions  thereof, 
and  the  evil  sought  to  be  remedied  by  the  Act  should 
always  be  kept  in  mind."''  Subject  to  the  jDrovisions 
prohibiting  unreasonable  rates,  practices,  classifications 
and  charges,  and  unjust  discriminations  between  traffic, 
individuals  and  localities,  the  statute  should  not  be  con- 
strued as  to  deprive  the  coiiimon  carriers  of  their  right 
under  the  common  law  to  manage  their  properties  upon 
the  same  principles  adopted  in  other  trades  and  pursuits. 
In  other  words,  the  statute  regulates  carriers  in  their 
public,  but  not  in  their  private,  capacity.-'^  In  construing 
the  Act,  the  courts  are  required  to  take  into  considera- 
tion not  only  the  interests  of  shippers  in  large  cities, 
but  also  the  carriers  themselves  and  the  consumers 
in  other  localities.^' 

§  63.  Commission  not  Authorized  Under  Original 
Act  of  1887  to  Prescribe  Rates  for  Transportation.     As 

the  original  iVct  provided  in  Section  1  that  all  charges 
must  be  reasonable  and  just,  and  that  all  unjust  and  un- 
reasonable rates  and  charges  shall  be  deemed  unlawful, 
and  further  provided  in  Section  12  that  the  Interstate 
Commerce  Commission  was  authorized  to  enforce  the 
provisions  of  the  Act,  the  Commission,  for  many  years 
after  its  creation,  assumed  the  authority  and  power  to 
prescribe  rates  which  should  be  charged  by  interstate 
common  carriers  in  the  future  in  addition  to  its  con- 
ceded authority  to  inquire  whether  rates  which  had 
been  charged  and  collected  were  reasonable — the  former 

25.  Van  Patten  v.  Chicago,  M.  mission  v.  Baltimore  &  O.  R.  Co., 
&  St.  P.  Ry.  Co.,  81  Fed.  545.  43  Fed.  37. 

26.  Interstate  Commerce  Com-  27.  Interstate  Commerce  Com- 
mission V.  Chicago  Great  Western  mission  v.  Alabama  Midland  R. 
R.  Co.,  209  U.  S.  108,  52  L.  Ed.  ^o.,  168  U.  S.  144,  42  L.  Ed.  414, 
705,   28   Sup.   Ct.   493;      Interstate  ^^  g^^^  ^^_  ^g.     ^^^^^  ^  p_  ^^  ^^^ 


V.    Interstate   Commerce    Commis- 


Commerce  Commission  v.  Ala- 
bama Midland  R.  Co..  168  U.  S.  .  h.o  rr  ^  .n.,  .«  t  t.  ,  n.r^ 
144  42  L.  Ed.  414,  18  Sup.  Ct.  45;  «'«^'  1^2  U.  S.  197,  40  L.  Ed.  940. 
Interstate  Commerce  Commission  16  Sup.  Ct.  666;  Interstate  Com- 
V.  Louisville  &  N.  R.  Co.,  73  Fed.  merce  Commission  v.  Louisville  & 
409;     Interstate    Commerce    Com-  N.  R.  Co.,  73  Fed.  409. 


§  G'S]  Genesis  and  Scope  of  Act.  157 

being  a  legislative  act,  and  the  latter  a  judicial  act.^" 
Upon  a  complaint  oi"  tlie  Chicago  and  Cincinnati 
freight  bureaus  against  a  number  of  railway  companies 
that  the  rates  on  several  classes  of  freight  from  said 
cities  respectively,  to  the  City  of  Atlanta,  Ga.,  and 
other  places  south  of  the  Ohio  River,  were  unreason- 
ably high,  the  Commission,  after  a  hearing,  decided  that 
the  rates  complained  of  were  unreasonable  and  unjust 
and  in  violation  of  the  Act.  The  Commission  thereupon 
ordered  the  carriers  to  cease  and  desist  from  charging 
more  than  the  rates  therein  prescribed  by  the  Com- 
mission.-'' The  Commission  petitioned  the  court  to  re- 
quire the  carriers  to  obey  the  order  after  they  had  re- 
fused to  reduce  the  rates  in  conformity  therewith.  The 
Circuit  Court  of  Appeals  certified  the  case  to  the  United 
States  Supreme  Court,  and  that  court  held  that  Con- 
gress had  not,  in  the  Act  to  Regulate  Commerce,  con- 
ferred upon  the  Commission  the  legislative  j^ower  of 
prescribing  rates,  either  maximum,  minimum,  or  absol- 
ute, and,  therefore,  the  Commission  did  not  have  any 
power  to  fix  and  prescribe  rates  which  should  control  in 
the  future. ^°  From  the  date  of  this  decision.  May  24, 
1897,  until  the  Hepburn  amendment  of  1906  became  ef- 
fective, the  Commission  did  not  attempt,  and  had  no 
power,  to  prescribe  just  and  reasonable  rates  or  charges 
to  be  thereafter  collected  as  the  maximum  by  the  car- 
riers. 

28.  St.  Louis  &  S.  F.  Ry.  Co.  v.  Freight  Bureau  v.  Louisville,  N. 
Gill,  156  U.  S.  649,  39  L.  Ed.  5r,7.      A.  &  C.  R.  Co.,  6  L  C.  C.  195. 

15  Sup.  Ct.  484;  Reagan  v.  Farm-  30.  Interstate  Commerce  Com- 
ers' Loan  &  Trust  Co.,  154  U.  S.  mission  v.  Cincinnati,  N.  0.  &  T. 
362,  38  L.  Ed.  1014,  14  Sup.  Ct.  P.  Ry.  Co.,  167  U.  S.  479.  42  L.  Ed. 
1047;  Chicago,  M.  &  St.  P.  Ry.  243,  17  Sup.  Ct.  896.  See  also 
Co.  V.  Minnesota,  134  U.  S.  418.  Cincinnati,  N.  0.  &  T.  P.  R.  Co. 
33  L.  Ed.  970,  10  Sup.  Ct.  462,  702.  v.   Interstate   Commerce   Commis- 

29.  Freight  Bureau  of  Cincin-  sion,  162  U.  S.  184.  40  L.  Ed.  935. 
nati  V.  Cincinnati,  N.  0.  &  T.  P.  16  Sup.  Ct.  700,  known  as  the  So- 
Ry.  Co..   6  I.  C.  C.   195;     Chicago  cial   Circle  Case. 


CHAPTER  V 

Chronological  Review  of  Leading  Amendments 
TO  Statute. 

Sec.  64.     Scope  of  the  Chapter. 

Sec.  65.  Amendments  of  1889  and  1891  to  the  Interstate  Commerce 
Act. 

Sec.  66.  Invalid  Provision  of  Section  12  Remedied  by  Passage  of  Com- 
pulsory Testimony  Act  of  1893. 

Sec.  fi7.  Provisions  Prohibiting  Rebates  and  Discriminations  Strength- 
ened by  Passage  of  Elkins  Act  of  1903. 

Sec.  68.  Scope  of  Act  and  Powers  of  Commission  Greatly  Extended 
Through  Amendments  Incorporated  by  Hepburn  Act  of 
1906. 

Sec.  09.  Initial  Carrier  Liable  for  Loss  and  Damage  on  Lines  of  Con- 
necting Carrier — Carmack  Amendment. 

Sec.  70.  Commission  Empowered  to  Order  Switch  Connection  with 
Private  Side  Tracks  and  Lateral  Branch  Lines. 

Sec.  71.  Carriers  Prohibited  from  Owning  or  Having  an  Interest  in 
Freight   Transported — the   Commodity   Clause. 

Sec.  72.  Amendments  Authorizing  Commission  to  Prescribe  Through 
Routes  and  Joint  Rates. 

Sec.  73.  Commission  Authorized  to  Determine  Allowances  to  Ship- 
pers for  Services  Rendered  in  Connection  with  Transpor- 
tation. 

Sec.  74.  Amendment  of  1906  Prohibiting  the  Issuance  and  Giving  of 
Free  Passes — Persons  Excepted. 

Sec.  7.5.  Forms  of  All  Accounts,  Records  and  Memoranda  Kept  by 
Interstate  Carriers  Placed  under  .Turisdiction  of  Com- 
mission. 

Sec.  76.  Amendments  and  Additions  to  the  Statute  by  the  Mann-El- 
kins  Act  of  1910. 

Sec.  77.  Fraudulent  Claims  for  Loss  and  Damage  by  Shippers  Against 
Carriers  Penalized. 

Sec.  78.  Power  Conferred  upon  Commission  by  1910  Amendment  to 
Suspend  Proposed  Changes  in  Rates. 

Sec.  79.     The  1910  Amendment  to  the  Long  and  Short  Haul  Provision. 

Sec.  80.  Statutory  Duty  of  Carriers  to  Route  Interstate  Freight  as 
Directed  by  Shippers. 

Sec.  81.  Carriers  and  Their  Agents  Prohibited  from  Giving  Informa- 
tion Relating  to  Business  of  Interstate  Shippers. 

Sec.  82.  Extension  of  Jurisdiction  of  Commissian  over  Water  Carriers 
by  Panama  Canal  Act  of  1912. 

Sec.  83.  Act  of  1913  Requiring  Commission  to  Ascertain  Valuation  of 
Property  Owned  or  Used  by  all  Interstate  Carriers. 

Sec.  84.     Amendment  of  1917  Penalizing  Persons  for  Obstructing  Move 
ment  of  Interstate  Commerce  During  War. 

(158) 


§  05]  Amendments  to  Commerce  Act.  159 

Sec.  85.     President    Authorized    During    War    to    Direct    Movement    of 
Commodities  Essential  to  National  Defense. 

§  64.  Scope  of  the  Chapter.  Sincf!  the  eiiaetinent 
of  tlio  original  Act  to  Regulate  Coiiiiiierce  in  1S87,  the 
statute  has  been  frequently  amended.  The  general 
tendency  of  these  amendments  has  been  to  greatly  ex- 
tend the  scope  of  the  original  statute  and  to  increase 
the  powers  of  the  Interstate  Commerce  Commission. 
In  addition,  many  defects  were  found  in  the  enforcement 
of  the  Act  and  most  of  these  have  been  remedied  by 
amendatory  legislation.  Under  the  original  Act,  the 
Interstate  Commerce  Commission  was  primarily  an 
investigating  body  with  but  few  powers  over  the  car- 
riers. At  the  present  time  it  has  a  vast  and  extensive 
control  over  the  interstate  traffic  not  only  of  common 
carriers  by  railroad,  but  also  pipe  line,  express,  sleep- 
ing car,  telegraph,  telephone  and  cable   companies. 

In  examining  the  decisions  of  both  the  federal  and 
state  courts  construing  the  provisions  of  the  Interstate 
Commerce  Act,  the  dates,  and  the  nature  of  the  im- 
portant amendments  passed  from  time  to  time  during 
the  three  decades  of  the  existence  of  the  Commission, 
should  be  considered;  for  frequently  amendments  have 
been  adopted  to  correct  defects  found  by  the  courts  in 
the  Act  or  to  give  powers  and  authority  to  the  Com- 
mission w^iich  the  courts  had  held  it  did  not  possess. 
In  this  chapter  the  author  will  briefly  review,  in  chrono- 
logical order,  the  important  amendments  to  the  Act 
commencing  with  the  first  in  1889  to. the  last  amendments 
previous  to  the  date  of  the  publication  of  this  work. 

§  65.  Amendments  of  1889  and  1891  to  the  Inter- 
state Commerce  Act.  The  first  amendments  to  the  Inter- 
state Commerce  Act,  passed  on  March  2,  1889,  consisted 
of  changes  in  or  additions  to  sections  G,  10,  12,  14,  16, 
17,  18,  21,  and  22,  and  also  a  new  paragraph  now 
designated  as  Section  23  of  the  Act.  Some  of  these 
amendments  introduced  no  radical  changes  in  the  stat- 
ute but  others  added  provisions  which  tend  to  render 
the  enforcement  of   the   act   more   effective.     The   new 


160  Duties  to  Interstate  Shippers.  [^  65 

section  added  by  tlie  1889  amendment  provided  that 
if  any  carrier  refused  to  carry  any  interstate  traffic  for 
any  shipper  at  the  same  rates  or  npon  the  same  condi- 
tions and  terms  given  other  shippers  for  like  traffic 
under  similar  conditions,  or  refused  to  furnish  cars  or 
other  vehicles  for  transportation,  the  shipper  so  dis- 
criminated against  might  apply  to  the  courts  for  a  writ 
of  mandamus  to  compel  the  carrier  to  move  and  trans- 
port such  traffic  or  to  furnish  such  facilities  without 
a  preliminary  investigation  by   the   Commission. 

An  amendment  to  Section  6  provided,  in  addition 
to  the  fine  prescribed  by  the  original  Act,  imprison- 
ment for  officers  or  agents  of  carriers  found  guilty  of 
any  unlawful  discrimination  in  rates,  fares  or  charges 
for  the  transportation  of  passengers  or  property.  Sec- 
tion 6  was  further  amended  by  the  insertion  of  a  penal 
provision  which  prohibited,  under  a  penalty  of  imi)rison- 
ment  or  a  fine,  or  both,  any  person  or  any  agent  of  a 
corporation  from  obtaining  transportation  at  less  than 
the  regular  established  rate  by  false  billing,  classifi- 
cation, weighing,  report  of  weight  or  any  other  device 
or  means  with  or  without  the  consent  of  the  carrier, 
or  who,  by  the  payment  of  money  or  otherwise,  induced 
a  carrier  or  its  agents  to  discriminate  unjustly  in  his 
favor  as  against  other  shippers  in  the  transportation 
of  propert}^,  or  aided  or  abetted  a  common  carrier  in 
any  such  unlawful  discrimination. 

A  further  provision  with  a  like  penalty  prohibited 
the  carriers  subject  to  the  Act,  or  their  officers  and 
agents,  from  granting  or  permitting  the  transportation 
of  property  at  less  than  the  scheduled  and  established 
rate,  by  any  false  billing,  classification,  weighing  or 
other  means  or  devices.  Under  the  original  Act,  re- 
ductions in  rates  or  fares  were  permitted  to  be  made 
without  any  previous  public  notice,  the  only  require- 
ment being  that  whenever  the  reduction  was  made, 
notice  of  the  same  was  immediately  to  be  given. 
One  of  the  amendments  of  1889  required  three  days' 
previous  notice  of  any  reduction  in  any  published  rates, 
fares  or   charges.     Another   amendment   to    Section   6 


§  65]  Amendments  to  CoMMEhci-;  Act.  IGl 

])roviclod  that  no  advanco  should  be  made  in  Joint  rates, 
Tales  or  charges  except  after  ten  days  notice  to  the 
Commission,  and  no  reductions  were  permitted  in  sucli 
joint  rates  excei)t  after  three  days  notice  to  the  Com- 
mission. Tlie  carriers  were  also  prohibited  from  collect- 
ing a  greater  or  less  compensation  for  the  transporta- 
tion of  property  between  any  points  as  to  which  a 
joint  rate  or  fare  was  named  thereon  than  was  specifi- 
ed in  the  schedule  filed  with  the  Commission. 

An  amendment  to  Section  12  required  all  district 
attorneys  of  the  United  States  to  whom  the  Commission 
might  apply,  to  institute  in  the  proper  court  and  to 
prosecute  all  necessary  proceedings  for  the  enforce- 
ment of  the  provisions  of  the  Interstate  Commerce  Act. 
An  amendment  to  Section  14  prescribed  that  the  Com- 
mission might  provide  for  the  publication  of  its  reports 
and  decisions  and  that  such  authorized  publications 
should  be  competent  evidence  of  the  reports  and  deci- 
sions of  the  Commission  therein  contained  in  all  the 
courts  of  the  United  States  and  of  the  several  states  with- 
out any  further  i^roof  or  authentication  thereof.  Under 
the  original  Act  the  authority  of  the  Commission  to 
employ  assistants  and  fix  their  compensation  was  sub- 
ject to  the  approval  of  the  Secretary  of  Interior,  and 
the  annual  report  of  the  Commission  was  required  to 
be  made  to  the  Secretary  of  Interior.  Both  of  these 
provisions  as  to  the  Secretary  of  Interior  were  elimina- 
ted from  the  Act  by  the  amendment  of  1889. 

Section  22  of  the  original  Act  was  further  amend- 
ed by  a  provision  that  nothing  in  the  statute  should  be 
construed  to  prevent  the  free  carriage  of  destitute  and 
homeless  persons  transported  by  charitable  societies, 
and  the  necessary  agents  employed  in  such  transporta- 
tion, or  to  give  reduced  rates  to  municipal  governments 
for  the  transportation  of  indigent  persons,  or  to  in- 
mates of  the  National  Homes  or  State  Homes  for  Dis- 
abled Volunteer  Soldiers  and  of  Soldiers'  and  Sailors' 
Orphan  Homes,  including  those  about  to  enter  and 
those  returning  homo  after  discharge.  Section  12  was 
further  amended  in  1891  l)y  a  provision  authorizing  the 

1   Cuutiol    Curiiers   11 


162  Duties  to  Interstate  Shippers.  [§  65 

Commission  to  require  witnesses  to  attend  and  the  pro- 
duction of  documentary  evidence  at  any  place  in  the 
United  States  at  any  designated  place  of  hearing,  and 
in  case  of  a  disobedience  to  a  subpoena,  the  Commission, 
or  any  party  to  a  proceeding  before  the  Commission, 
were  permitted  to  invoke  the  aid  of  the  courts  of  the 
United  States  in  requiring  the  attendance  of  the  wit- 
nesses and  the  production  of  books.  The  amendment 
further  provided  that  the  testimony  of  any  witness  in 
any  proceeding  or  investigation  pending  before  the 
Commission  might  be  taken  by  deposition  at  any  time 
after  a  cause  or  proceeding  was  at  issue  on  petition  and 
answer. 

§  66.  Invalid  Provision  of  Section  12  Remedied 
by  Passage  of  Compulsory  Testimony  Act  of  1893. 
The  provision  in  the  third  paragraph  of  Section  12  of 
the  original  Act  that  no  person  could  be  excused  from 
testifying  before  the  Interstate  Commerce  Commission 
as  to  any  violation  of  the  Act  because  such  testimony 
might  tend  to  incriminate  him,  was,  in  1892,  held  to 
be  invalid  on  the  ground  that  it  was  in  violation  of  the 
Fifth  Amendment  of  the  Constitution  providing  that 
no  person  should  be  compelled  in  a  criminal  case  to  be 
a  witness  against  himself.^  The  Supreme  Court,  in 
the  case  cited,  held  that  the  clause  "but  such  evidence 
or  testimony  shall  not  be  used  against  such  person  on 
the  trial  of  any  criminal  proceeding"  was  not  broad 
enough  to  afford  absolute  immunity  from  all  future 
prosecutions. 

To  remedy  this  defect,  Congress  passed  the  statute 
known  as  the  Compulsory  Testimony  Act  of  February 
11,  1893,  which  is  as  follows:  "That  no  person  shall 
be  excused  from  attending  and  testifying  or  from  pro- 
ducing books,  papers,  tariifs,  contracts,  agreements  and 
documents  before  the  Interstate  Commerce  Commission, 
or  in   obedience   to   tlie    subpoena   of  the   Commission, 

1.      Couiiselman     v.     Hitchcock,       142  U.   S.  547,  35  L.  Ed.   1110,  12 

Sup.  Ct.  195. 


§  ()6]  Amendments  to  Commerce  Act.  163 

whether  .sucli  su])i)0('iia  ho  signed  or  issued  hy  one  or 
more  Commissioners,  or  in  any  cause  or  proceeding, 
criminal  or  otherwise,  hased  upon  or  growing  out  of 
any  alleged  violation  of  the  Act  of  Congress,  entitled 
'An  Act  to  Regulate  Commerce,'  approved  February 
foui'th,  eighteen  hundred  and  eighty-seven,  or  of  any 
amendment  thereof  on  the  ground  or  for  the  reason 
that  the  testimony  or  evidence,  documentary  or  other- 
wise, required  of  him,  may  tend  to  criminate  him  or 
subject  him  to  a  penalty  or  forfeiture.  But  no  person 
shall  be  prosecuted  or  subjected  to  any  penalty  or 
forfeiture  for  or  on  account  of  any  transaction,  matter 
or  thing,  concerning  which  he  may  testify,  or  produce 
evidence,  documentary  or  otherwise,  before  said  Com- 
mission, or  in  obedience  to  its  subpoena,  or  the  sub- 
poena of  either  of  them,  or  in  any  such  case  or  proceed- 
ing; Provided,  That  no  person  so  testifying  shall  be 
exempt  from  prosecution  and  punishment  for  perjury 
committed  in  so  testifying.  Any  person  who  shall  neg- 
lect or  refuse  to  attend  and  testify,  or  to  answer  any 
lawful  inquiry,  or  to  produce  books,  papers,  tariffs, 
contracts,  agreements  and  documents,  if  in  his  power 
to  do  so,  in  obedience  to  the  subpoena  or  lawful  require- 
ment of  the  Commission  shall  be  guilty  of  an  offense  and 
upon  conviction  thereof  by  a  court  of  competent  juris- 
diction shall  be  punished  by  fine  not  less  than  one 
hundred  dollars  nor  more  than  five  thousand  dollars, 
or  by  imprisonment  for  not  more  than  one  year  or  by 
both  such  fine  and  imprisonment."^  The  act  of  1893 
was  held  to  be  valid  and  not  a  violation  of  the  P'ifth 
Amendment  of  the  Constitution.^ 

The  statute  was  amended  in  1906  by  the  addition 
of  a  provision  which  declared  that  the  immunity  there- 
in granted  should  extend  only  to  a  natural  person,  who 
in  obedience  to  a  subpoena,  gives  testimony  under  oath 

2.  27  Stat,  at  L.  443.  ."^91.    40    L.    Ed.    810.    IC    Sup.    Ct. 

3.  Brown  v.  Walker,  161  U.  S.      644. 


164  Duties  to  Interstate  Shippebs.  [§  GG 

or  produces  evidence,  documentary  or  otherwise,  under 
oath/ 

§  67.  Provisions  Prohibiting  Rebates  and  Discrimi- 
nations Strengthened  by  Passage  of  Elkins  Act  of  1903. 

The  federal  statute  commonly  known  as  the  Elkins  Act, 
approved  February  19,  1903,  although  passed  in  the 
form  of  an  indei3endent  measure,  was  in  fact  an  amend- 
ment, and  the  first  imjDortant  amendment  to  the  Act 
to  Regulate  Commerce  since  1889.  This  Act  corrected 
serious  defects  in  the  original  law  and  greatly  aided 
the  attainment  of  some  of  the  purposes  for  which  the 
original  Act  was  enacted.  Its  scope  and  effect  will 
be  readily  understood  when  the  two  main  objects  of 
the  original  Act  are  kept  in  mind,  that  is,  to  secure 
the  publication  of  just  and  reasonable  tariff  rates  free 
from  discriminations  and  to  compel  carriers  to  observe 
the  tariifs  so  filed  without  variation  or  exception.  The 
Elkins  Act  made  a  railway  corporation,  itself  engaged 
in  the  business  of  a  common  carrier,  liable  to  prosecu- 
tion in  all  cases  where  only  its  officers  and  agents  were 
liable  under  the  former  law.  This  change  in  the  statute 
made  the  principal  guilty  as  well  as  the  agent,  and 
corrected  a  defect  which  had  always  been  a  source  of 
embarras.sment  in  former  prosecutions  because  the 
statute  theretofore  gave  immunity  to  the  principal  and 
beneficiary  of  a  guilty  transaction.  However,  the  penal- 
ty of  imprisonment  for  a  violation  of  the  Act  was 
abolished.  As  the  corporation  could  not  be  imprisoned, 
Congress  deemed  it  expedient  that  no  greater  punish- 
ment be  visited  upon  the  offending  officer  or  agent 
than  ux)on  the  corporation  itself.^ 

The  most  important  change  in  the  Act  to  Regulate 
Commerce  which  the  Elkins  Act  atfected  was  the  provi- 
sion which  declared  that  the  published  rate  should 
conclusively  be   deemed  to   be  the   legal   rate   and   the 

4.  34  Stat,  at  L.  798.  ditional  penalty  of  three  times  the 

5.  The  penalty  of  imprison-  amount  of  money  received  or  a3- 
ment  was  restored  by  the  Hepburn  cepted  as  a  rebate  to  be  forfeited 
Amendment  of  1906,  with  an   ad-      to  the   United   States. 


§  67 


Amkndmlnis  to  Commerce  Act, 


16.5 


standard  of  lawfulness.  Any  departiuc  tlici-ffioin  was 
doclared  to  be  a  inisdonicanor."  Tlie  resnit  of  this 
feature  of  the  statute  was  to  make  the  shii)j)er  liable 
whenever  the  carrier  was  liable,  and  either  oi-  both 
miiifht  be  convicted  by  sini])ly  ))rovinf2:  ^hat  the  rato 
charg-ed  was  not  covered  by  the  tariff  ap])licabl('  to  the 
transaction.^  The  statute  further  provided  that  the 
act  or  omis.sion  of  any  officer  or  agent  of  a  common 
carrier  acting  within  the  scope  of  his  em])loyment 
should  be  deemed  to  be  the  act  or  omission  of  the  car- 
rier itself  as  well  as  that  of  the  agent.  Anothei-  ]n-o- 
vision  conferred  jurisdiction  upon  the  circuit  courts 
of  the  United  States  to  restrain  departures  from  ])ub- 
lished  rates  on  file  or  any  discrimination  forbidden 
by    law    by    writ    of    injunction    or    other    ai)pi-o])riato 


R.  New  York  Cent,  f  H.  River 
R.  Co.  V.  United  States,  212  U.  S. 
500,  53  L.  Ed.  624.  29  Sup.  Ct. 
309;  Chicago  &  A.  R.  Co.  v.  Unit- 
ed States,  212  U.  S.  563,  53  L.  Ed. 
653,  29  Sup.  Ct.  689;  Armour  Pack- 
ing Co.  V.  United  States,  209  U. 
S.  56,  52  L.  Ed.  681,  28  Sup.  Ct. 
428. 

7.  The  difficulties  in  enforcing 
the  provisions  of  the  Interstate 
Commerce  Act  prohibiting  dis- 
criminations, prior  to  the  passage 
of  the  Elkins  Act.  were  well  stated 
by  the  Interstate  Commerce  Com- 
mission in  its  17th  Annual  Report, 
as  follows:  "As  the  former  law 
was  construed  by  the  courts,  it 
was  not  sufficient  to  show  that  a 
secret  and  preferential  rate  had 
been  allowed  in  a  particular  case; 
there  had  to  be  further  proof  of 
the  payment  of  schedule  charges, 
or  at  least  higher  charges  than 
those  in  question,  by  some  other 
person  on  like  and  contemporane- 
ous shipments.  That  is,  it  was 
necessary  to  prove  discrimination 
In  fact  as  between  shippers  entitled 
to  the  same  rates  by  reason  of  re- 


ceiving the  same  service.  The 
practical  result  of  this  construc- 
tion was  to  render  successful  pros- 
ecutions extremely  difficult,  if  not 
impossible,  because  the  required 
evidence  could  rarely  be  secured, 
and  this  was  particularly  the  case 
when  there  was  an  extensive  de- 
moralization of  rates  and  conse- 
quently the  most  urgent  occasion 
for  the  use  of  criminal  -remedies. 
Under  such  circumstances  it  fre- 
quently happened  that  all  shippers 
received  substantially  the  sam(< 
rates,  however  much  less  than  the 
published  tariff,  and  thus  there 
was  no  actual  discrimination. 
This  aggravating  defect  appears  to 
have  been  wholly  cured,  as  the 
new  law  (the  Elkins  Act)  in  most 
explicit  terms  makes  the  published 
tariff  the  standard  of  lawfulness, 
as  respects  criminal  misconduct, 
and  any  departure  therefrom  is 
declared  to  be  a  misdemeanor.  It 
is  sufficient  now,  in  order  to  make 
out  a  case  of  criminal  wrongdoing, 
to  show  that  a  lower  or  different 
rate  from  that  named  ir  the  tariff 
has  been  accorded." 


166  Duties  to  Interstate  Shippers.  [§  67 

process.  The  writ  or  process  thus  authorized  is  en- 
forceable against  parties  interested  in  the  traffic  as 
well  as  against  the  carrier. 

§  68.  Scope  of  Act  and  Powers  of  Commission 
Greatly  Extended  Through  Amendments  Incorporated 
by  Hepburn  Act  of  1906.  Material  changes  in  and  ad- 
ditions to  the  Act  to  Regulate  Commerce  were  made  by 
the  Hepburn  amendment  of  1906.  The  scope  of  the  act 
and  the  powers  of  the  Interstate  Commerce  Commission 
thereunder  were  greatly  extended.  The  membership  of 
the  commission  was  increased  from  five  to  seven  and 
their  salaries  from  $7500  to  $10,000  a  year.  Express* 
and  sleeping  car  companies,''  engaged  in  interstate 
commerce,  and  persons  transporting  oil  by  pipe  lines'*' 
were  made  subject  to  the  provisions  of  the  statute. 
The  Commission  was  authorized  to  establish  through 
routes  and  joint  rates  with  the  terms  and  conditions 
under  which  such  through  routes  should  be  operated. 
The  i^unishment  of  imprisonment  for  certain  violations 
of  the  Act,  repealed  by  the  Elkins  Act  of  1903,  was 
restored.  No  increase  or  reduction  of  rates,  either 
joint  or  separate,  was  permitted  except  after  thirty 
days  notice,  the  former  Act  requiring  only  ten  days 
notice  of  an  increase  and  three  days  notice  of  a  de- 
crease. 

The  Commission  was  given  the  power  to  determine 
the  maximum  amount  to  be  paid  a  shipper  for  any 
service  rendered  in  connection  with  the  transportation 
of  property  or  any  instrumentality  used  therein.  The 
effect  of  a  decision  of  the  Supreme  Court  construing 
the  original  Act  in  holding  that  the  Commission  was 
not  authorized  to  prescribe  rates  for  the  future,^^  was 
destroyed  b}^  an  amendment  providing  that  the  Commis- 
sion was  authorized  and  empowered  to  determine  and 
prescribe  what  should  be  just  and  reasonable  rates  or 

S.     Section  109,  infra.  mission  v.  Cincinnati,  N.  O.  &  T. 

9.  Section  110,  infra.  P.  Ry.  Co.,  167  U.  S.  479.  42  L.  Ed. 

10.  Section  106.   infra.  24.3,  17  Sup.  Ct.  896.     See  section 

11.  Interstate  Commerce  Com-      63,   supra. 


<§.  68]  Amendments  to  Commerce  Act.  167 

charges  to  be  tliereafter  observed  as  the  maximum  to 
be  charged,  aud  wliat  regulation  or  practice  in  respect 
to  sucli  transportation  was  just,  fair  and  reasonable 
to  be  thereafter  followed.  The  term  "railroad"  defined 
in  the  original  Act  as  including  all  bridges  and  fei-ries 
used  in  connection  with  any  railroad,  and  also  all  the 
road  in  use  by  any  corporation  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agree- 
ment or  lease,  was  further  extended  and  defined  so  as 
to  include  ''all  switches,  spurs,  tracks,  and  terminal 
facilities  of  every  kind  used  or  necessary  in  the  trans- 
l)ortation  of  the  persons  or  property  designated  herein, 
and  also  all  freight  depots,  yards,  and  grounds  used 
or  necessary  in  the  transportation  or  delivery  of  any 
of  said  ijroperty. " 

The  term  "transportation,"  defined  in  the  original 
Act  as  including  all  instrumentalities  of  shipment  or 
carriage,  was  amended  so  as  to  include  all  cars  and 
other  vehicles  and  all  instruments  of  shipment  or  car- 
riage, irrespective  of  ownership  or  of  any  contract,  ex- 
press or  implied,  for  the  use  thereof,  and  all  service  in 
connection  with  the  receij)t,  delivery,  elevation,  trans- 
fer in  transit,  ventilation,  refrigeration,  icing,  storage, 
and  handling  of  property  transported.  Other  important 
amendments  introduced  by  the  Hepburn  Act  are  briefly 
reviewed  in  the  following  paragraphs.^" 

12.     The   causes   for   the   enact-  stances,    a    railroad    and    a    mere 

ment    of   the   Hepburn    Act    were  switch     owned     by     a     shipper; 

given   in   the   report   of   the   Con-  through     arrangements     whereby 

gressional  Committee,  as  follows:  excessive    mileage    was    given    to 

"It  has  been  believed  by  a  large  the  shipper  of  products  who  owned 

portion  of  the  shippers  that  rail-  his  own  cars;    through  the  use  of 

way  rates  were  in  many  instances  refrigerator    cars;       through     the 

too     high,     and     that     favoritism  permission   given    to    Independent 

through   rebates  and  other  forms  corporations  to  render  some  serv- 

of    discrimination    were    indulged  ice   incident   to   the   shipment,   as 

in  by  various  methods  by  the  car-  the  furnishing  of  ice  in  the  bunk- 

riers.     The   ingenuity   of  some  of  ers  of  the  car;    by  what  is  known 

the  carriers  and  shippers  has  re-  as  the  'midnight  tariff,'  a  method 

suited  in  avoiding  the  provisions  involving  an  arrangement  with  a 

of   that    Act    through    the    use   of  shipper   to  assemble  his   freights, 

joint  tariffs,  involving,  in  some  in-  have  them  ready  for  shipment  at 


1G8  Duties  to  Intekstate  Shippers.  [§  69 

§  69,  Initial  Carrier  Liable  for  Loss  and  Damage 
on  Lines  of  Connecting  Carrier — Carmack  Amendment. 

At  eommoii  law,  a  carrier  acceptiiiij;  a  shipment  for 
transportation  to  a  destination  point  ou  a  connecting 
line  could  limit  its  liability  for  loss  or  damage  not  oc- 
curring on  its  own  portion  of  the  route,  that  is,  on  its 
own  line.  Such  a  provision  in  a  bill  of  lading  was 
not  a  contract  for  exemption  from  a  carrier's  liability 
as  such,  but  merely  a  declaration  on  the  part  of  the 
carrier  that  it  did  not  assume  the  obligation  of  a  carrier 
beyond  its  own  line.  An  initial  caiiier,  therefore,  might 
exempt  itself  from  liability  for  loss  or  damage  through 
the  fault  of  a  connecting  carrier." 

The  hardships  placed  upon  shippers  by  such  provi- 
sions in  contracts  of  shipment  were  well  stated  by  the 
Supreme  Court  in  the  following  language;''  "As  a  result 
the  shipi^er  could  look  only  to  the  initial  carrier  for 
recompense  for  loss,  damage  or  delay  occurring  on  its 
part  of  the  route.  If  such  primary  carrier  was  able 
to  show  a  delivery  to  the  rails  of  the  next  succeeding 
carrier,  although  the  packages  might  and  usually  did 
continue  the  journey  in  the  same  car  in  which  they 
had  been  originally  loaded,  the  shipper  must  fail  in 
his  suit.     He  might,  it  is  true,   then  bring  his   action 

a  particular  date,  whereupon  the  riers  had  in  good  faitli  accepted 
carrier  would  give  the  necessary  exit.ting  statutes  and  obeyed  them 
three  days'  notice  of  a  reduction  there  would  have  been  no  necessity 
in  the  rate.  Competing  carriers  for  increasing  the  powers  of  the 
and  shippers  would  know  nothing  Commission  or  the  enactment  of 
about  this  arrangement.  The  new  coercive  measures." 
freight  would  be  shipped  at  the  13.  Southern  Pac.  Co.  v.  Inter- 
new  lower  rate,  and  then  there  state  Commerce  Commission,  200 
would  be  a  restoration  of  the  old  u.  S.  5:^6,  50  L.  Ed.  585,  26  Sup. 
rate.  The  law  of  to-day  would  be  ^^  33Q.  ^yrick  v.  Michigan  Cent, 
fairly  satisfactory  to  all  shippers  ^  ^^  ^^^  ^  g  ^q^,  27  L.  Ed. 
if  the  spirit   of  fairness   required  ,,^,^   ^   ^^^    ^^    ^^5;     Ogdensburg 


&  L.  C.   R.  Co.  v.  Pratt,  22  Wall. 


by  it  had   controlled   the  conduct 

of  the  carriers,  and  the  necessity 

for  the  proposed  legislation  is  the  ^^^-  ^'^  ^^S,  22  L.  Ed.  827. 

result   of  and   is   made   necessary  1^.     Atlantic  Coast  Line  R.  Co. 

by  the  misconduct  of  parties  who  v.  Riverside  Mills,  219  U.  S.  186. 

are   now    most   clamorous    againit  55  L.  Ed.  167,  31  Sup.  Ct.  164,  31 

additional   restraint.     If   the   car-  L.  R.  A.   (N.  S.)   7. 


"^  69]  Amendments  to  Commerce  Act.  169 

against  tlir  carrior  so  shown  to  have  next  received  Ihc 
shipment.  But  here,  in  turn  he  might  be  met  by  i)roor 
of  safe  delivery  to  a  third  separate  carrier.  In  sliort, 
as  the  shipper  was  not  himself  in  possession  of  tlie 
information  as  to  when  and  where  his  property  had 
been  lost  or  damaged  and  had  no  access  to  the  records 
of  the  connecting  carriers  who  in  turn  had  participated 
in  some  part  of  the  transportation,  he  was  compelled 
in  many  instances  to  make  such  settlement  as  should 
be  proposed.  This  burdensome  situation  of  the  shipping- 
public  in  reference  to  interstate  shipments  over  routes 
including  separate  lines  of  carriers  was  the  matter 
which  Congress  undertoolc  to  regulate." 

To  remedy  the  situation  thus  described  confionting 
interstate  shippers,  Congress,  in  1906,  amended  Section 
20  of  the  Act  by  recpiiring  all  common  carriers  engaged 
in  interstate  conmierce  to  issue  a  receipt  or  a  bill  of 
lading  for  ])ro])erty  received,  and  making  I  he  initial 
carrier  liable  to  the  lawful  holder  of  the  bill  of  lading 
for  any  loss,  damage  or  injury  to  the  property  caused 
by  it  or  by  any  common  carrier  to  which  such  property 
might  be  delivered  or  over  whose  lines  the  property 
might  pass  in  transportation,  with  the  right,  however, 
reserved  to  the  initial  carrier  to  recover  from  the  de- 
faulting connecting  carrier  any  sum  it  might  be  required 
to  pay. 

This  jU'ovision  is  known  as  the  Carmack  Amend- 
ment,''' and  by  its  passage,  for  the  first  time,  the  liabili- 

15.      The    Carmack    r.mendment  mon  cariier.  railroad,  or  transpor 

as   originally    enacted    and    before  tation    company    to    which    such 

the  amendments  of  March  4,  1915  property  may  be  delivered  or  over 

and   August    0,    1916,    was    as    fol-  whose  line  or  lines  such  property 

lows:   "That  any  common  carrier,  may  pass,  and  no  contract,  receipt, 

railroad,    or    transportation    com-  rule,    or    regulation    shall    exempt 

pany  receiving  property  for  trans-  such  common  carrier,  railroad,  or 

portation  from  a  point  in  one  State  transportation  company  from  the 

to  a  point  in  another  State  shall  liability  hereby  imposed:     Provid- 

issue   a   receipt   or   bill    of   lading  ed.   That   nothing    in    this   section 

therefor  and  shall  be  liable  to  th-^  shall   deprive  any   holder  of  such 

lawful  holder  thereof  for  any  loss,  receipt    or   bill    of   lading   of    any 

damage,  or  injury  to  such  proper-  remedy   or  right   of  action    v.hicli 

ty   caused    by   it    or   by    any    com-  ho  has  under  existing  law.     That 


170 


Duties  to  Inteestate  Shippers. 


[§  69 


ty  of  interstate  carriers  for  loss,  delay,  injury  or  damage 
to  property  became  under  exclusive  federal  control  and 
subject  to  applicable  common  law  principles  as  inter- 
preted and  applied  in  tlie  federal  courts.^*' 


the  common  carrier,  railroad,  or 
transportation  company  issuing 
such  receipt  or  bill  of  lading  shall 
be  entitled  to  recover  from  the 
common  carrier,  railroad,  or  trans- 
portation company  on  whose  line 
the  loss,  damage,  or  injury  shall 
have  been  sustained  the  amount 
of  such  loss,  damage,  or  injury 
as  it  may  be  required  to  pay  to 
the  owners  of  such  property,  as 
may  be  evidenced  by  any  receipt, 
judgment,  or  transcript  thereof." 

The  Carmack  amendment  as 
modified  by  the  first  and  second 
Cummins  amendments  is  discussed 
in  chapters  XV  to  XVII  inclusive, 
infra. 

16.  United  States.  New  York  C. 
&  H.  River  R.  Co.  v.  Beaham,  242 
U.  S.  148,  61  L.  Ed.  210,  37  Sup. 
Ct.  43;  Chesapeake  &  0.  R.  Co. 
V.  McLaughlin,  242  U.  S.  142,  61 
L.  Ed.  207,  37  Sup.  Ct.  40;  Atchi- 
son. T.  &  S.  F.  R.  Co.  V.  Harold, 
241  U.  S.  371,  60  L.  Ed.  1050,  36 
Sup.  Ct.  665;  Cincinnati,  N.  0. 
&  T.  P.  R.  Co.  V.  Rankin,  241  U. 
S.  319,  60  L.  Ed.  1022,  36  Sup. 
Ct.  555.  L.  R.  A.  1917A  265; 
Georgia,  F.  &  A.  R.  Co.  v.  Blish 
Milling  Co.,  241  U.  S.  190,  GO  L. 
Ed.  948.  36  Sup.  Ct.  541;  Northern 
Pac.  Ry.  Co.  v.  Wall,  241  U.  S.  87, 
60  L.  Ed.  905,  36  Sup.  Ct.  493: 
Southern  R.  Co.  v.  Prescott,  240 
U.  S.  632,  60  L.  Ed.  836,  36  Sup. 
Ct.  469;  Southern  Exp.  Co.  v.  By- 
ers,  240  U.  S.  612,  60  L.  Ed.  825,  36 
Sup.  Ct.  410,  L.  R.  A.  1917A  197; 
New  York,  P.  &  N.  R.  Co.  v.  Penin- 
sula Produce  Exch.  of  Maryland, 
240  U.  S.  34,  60  L.  Ed.  511,  36  Sup. 
Ct.  230,  L.  R.  A.  1917A  193;    Cleve- 


land, C,  C.  &  St.  L.  R.  Co.  V.  Det- 
tlebach,  239  U.  S.  588,  60  L.  Ed. 
453,  36  Sup.  Ct.  177;  Charleston  & 
W.  C.  R.  Co.  V.  Varnville  Furniture 
Co.,  237  U.  S.  597,  59  L.  Ed.  1137, 
35  Sup.  Ct.  715,  Ann.  Cas.  1916D 
333;  Pierce  Co.  v.  Wells,  Fargo 
&  Co.,  236  U.  S.  278,  59  L.  Ed.  576. 
35  Sup.  Ct.  351;  Atchison,  T.  & 
S.  F.  R.  Co.  v.  Robinson,  233  U. 
S.  173,  58  L.  Ed.  901,  34  Sup.  Ct. 
556;  Boston  &  M.  R.  Co.  V.  Hooker, 
233  U.  S.  97,  58  L.  Ed.  868,  34  Sup. 
Ct.  526,  L.  R.  A.  1915B  450,  Ann. 
Cas.  1915D  593;  Great  Northern 
R.  Co.  V.  O'Connor,  232  U.  S.  508, 
58  L.  Ed.  703,  34  Sup.  Ct.  380,  8 
N.  C.  C.  A.  53;  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Cramer,  232  U.  S.  490. 
Norfolk  &  W.  R.  Co.  v.  Dixie  To- 
bacco Co.,  226  U.  S.  593,  57  L.  Ed. 
58  L.  Ed.  697,  34  Sup.  Ct.  383; 
980,  33  Sup.  Ct.  609;  Missouri,  K. 
&  T.  R.  Co.  v.  Harriman,  227  U. 
S.  657,  57  L.  Ed.  690,  33  Sup.  Ct. 
397;  Kansas  City  Southern  R.  Co. 
V.  Carl,  227  U.  S.  639,  57  L.  Ed. 
683,  33  Sup.  Ct.  391;  Wells,  Fargo 
&  Co.  V.  Neiman-Marcus  Co.,  227 
U  S.  469,  57  L.  Ed.  600,  33  Sup. 
Ct.  267;  Chicago,  St.  P.,  M.  &  0. 
R.  Co.  V.  Latta,  226  U.  S.  519,  57 
L.  Ed.  328,  33  Sup.  Ct.  155;  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Miller,  226 
U.  S.  513,  57  L.  Ed.  323.  33  Sup. 
Ct.  155;  Adams  Exp.  Co.  v.  Cron- 
inger,  226  U.  S.  491,  57  L.  Ed.  314, 
33  Sup.  Ct.  148,  44  L.  R.  A.  (N.  S.) 
257;  Galveston,  H.  &  S.  A.  R.  Co. 
V.  Wallace,  £23  U.  S.  481.  56  L. 
Ed.  516,  32  Sup.  Ct.  205;  Louis- 
ville &  N.  R.  Co.  V.  Scott.  219  U. 
S.  209,  55  L.  Ed.  183,  31  Sup.  Ct. 
171;     Chicago   &   E.    I.    R.   Co.   v. 


^  70J 


Amendments    to    Commeiuje    Act. 


]71 


§  70.     Commission   Empowered   to    Order    Switch 
Connection    with    Private    Side    Tracks    and    Lateral 


Collins  Produce  Co.,  149  C.  C.  A. 
109,  235  Fed.  857,  14  N.  C.  C.  A. 
917;  Hudson  v.  Chicago,  St.  P., 
M.  &  O.  Ry.  Co.,  22«  Fed.  iiS;  .J. 
H.  Halmen  &  Son.s  v.  Illinois  Cent. 
K.  Co.,  212  Fed.  324. 

Alabama.  Central  of  Georgia  R. 
Co.  V,  Patterson,  12  Ala.  App.  369, 
«8  So.  513;  Atlantic  Coast  Line 
R.  Co.  V.  Ward.  4  Ala.  ApiJ.  374,  58 
So.  677;  Central  of  Georgia  R.  Co. 
V.  Sims,  169  Ala.  295,  53  So.  826. 

Arkansas.  Kansas  City  &  M.  R. 
Co.  V.  Oakley,  115  Ark.  20,  170  S. 
W.  565;  Kansas  City  Southern  R. 
Co.  V.  Mixon-McClintock  Co.,  107 
Ark.  48,  Ann.  Cas.  1914C  1247,  154 
S.  W.  205;  St.  Louis  &  S.  F.  R.  Co. 
V.  Heyser,  95  Ark.  412,  Ann.  Cas. 
1912A  610,  130  S.  W.  562;  Chica 
go,  R.  I.  &  P.  R.  Co.  V.  Miles,  92 
Ark.  573,  123  S.  W.  775,  124  S.  W. 
1043. 

Colorado.  Appel  Suit  &  Cloak 
Co.  V.  Piatt,  55  Colo.  45,  132  Pac. 
71. 

Florida.  Fornel  v.  Florida  East 
Coast  R.  Co.,  65  Fla.  102,  61  So. 
194. 

Georgia.  Southern  R.  Co.  v. 
Waxelbauni  Produce  Co.,  19  Ga. 
App.  64,  90  S.  E.  987;  Baltimore 
&  O.  R.  Co.  V.  Montgomery  &  Co., 
19  Ga.  App.  29,  90  S.  E.  740; 
Southern  R.  Co.  v.  Savage,  18  Ga. 
App.  489,  89  S.  E.  634;  Southern 
E.xp.  Co.  V.  Essig  Bros.,  17  Ga.  App. 
657,  87  S.  E.  1090;  Nashville,  C. 
&  St.  L.  Ry.  Co.  V.  Truitt  Co.,  17 
Ga.  App.  236,  86  S.  E.  421;  Mitch- 
ell &  Co.  V.  Atlantic  Coast  Line  R. 
Co.,  15  Ga.  App.  797,  84  S.  E.  227; 
Atlantic  Coast  Line  R.  Co.  v. 
Thomasville  Live  Stock  Co.,  13  Ga. 
App.  102,  78  S.  E.  1019;  Cranor  v. 
Southern  R.  Co.,  13  Ga.  App.  86, 
78  S.  E.  1014;  Post  &  Woodruff  v. 
Atlantic  Coast  Line  R.  Co.,  138  Ga. 


763,  76  S.  E.  45;  Southern  Pac. 
Co.  V.  Crenshaw,  5  Ga.  App.  675, 
63  S.  E.  865. 

Illinois.  Looney  v.  Oregon  Short 
Line  R.  Co.,  271  111.  538,  111  N. 
E.  509;  Michelson  v.  Judsou 
Freight  Forwarding  Co.,  268  111. 
546,  109  N.  E.  281;  Gamble-Robin- 
son Commission  Co.  v.  Union 
Pac.  R.  Co.,  262  111.  400,  Ann.  Cas. 
1915B  89.  104  N.  E.  666;  Fry  v. 
Southern  Pac.  Co.,  247  111.  564,  93 
N.  E.  906. 

Indiana.     Chesapeake  &   0.   Ry. 

Co.  of  Indiana  v.  Jordan, Ind. 

App.  ,  114  N.  E.  461;    Toledo, 

St.  L.  &  W.  R.  Co.  V.  Milner,  

Ind.    App.    ,    110    N.    E.    756; 

Adams  Exp.  Co.  v.  Welborn,  59 
Ind.  App.  330,  108  N.  E.  163,  109 
N.  E.  420;  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Hayes,  181  Ind.  87, 
102  N.  E.  34,  103  N.  E.  839;  Wa- 
bash R.  Co.  V.  Priddy,  179  Ind. 
483,  101  N.  E.  724;  Pittsburgh,  C, 
C.  &  St.  L.  R.  Co.  V.  Mitchell,  175 
Ind.  196,  91  N.  E.  735,  93  N.  E. 
996. 

Iowa.    Cedar  Rapids  Fuel  Co.  v. 

Illinois   Cent.   R.   Co.,   Iowa, 

,  160  N.  W.  353;      Baldwin  & 

Riggs  V.  Chicago,  R.  I.  &  P.  R. 
Co.,  173  Iowa,  524,  L.  R.  A.  1916D 
335,  156  N.  W.  17;  Heilman  & 
Clark  V.  Chicago  &  N.  W.  R.  Co., 
167  Iowa,  313,  149  N.  W.  436. 

Kansas.  Miller  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  97  Kan.  782,  156 
Pac.  780;  Ray  v.  Missouri,  K.  &  T. 
R.  Co.,  96  Kan.  8,  L.  R.  A.  1916D 
1046,  149  Pac.  397;  Christl  v.  Mis- 
souri Pac.  R.  Co.,  92  Kan.  580,  141 
N.  W.  587;  Southern  Nursery  Co. 
V.  Winfield  Nursery  Co.,  89  Kan. 
522,  132  Pac.  149. 

Kentucky.  Adams  Exp.  Co.  v. 
Cook.  162  Ky.  592,  172  S.  W.  1096; 
Armstrong     v.     Illinois    Cent.     R. 


172 


Duties    to    Interstate    Shippers. 


[§  70 


Branch  Lines.     Under  the  common  law   a  carrier  was 


Co.,  162  Ky.  539,  172  S.  W.  947; 
Robinson  /.  Louisville  &  N.  R.  Co., 
160  Ky.  235,  169  S.  W.  831;  Louis- 
ville &  N.  R.  Co.  V.  Miller,  156  Ky. 
677,  50  L.  R.  A.  (N.  S.)  819,  162 
S.  W.  73. 

Louisiana.  Burkenroad  Gold- 
smith Co.  V.  Illinois  Cent.  R.  Co., 
138  La.  81,  Ann.  Cas.  1917C  935, 
70  So.  44;  National  Rice  Milling 
Co.  V.  New  Orleans  &  N.  E.  R. 
Co.,  132  La.  615,  Ann.  Cas.  1914D 
1099,  61  So.  708. 

Maine.     Continental   Paper  Bag 

Co.  V.  Maine  Cent.  R.  Co., Me. 

,  99  Atl.  259;     Ross  v.  Maine 

Cent.  R.  Co.,  112  Me.  63,  90  Atl. 
711. 

Maryland.  Baltimore,  C.  &  A.  R. 
Co.  V  William  Sperber  &  Co.,  117 
Md.  595,  84  Atl.  72. 

Massachusetts.  Aradalou  v. 
New  York,  N.  H.  &  H.  R.  Co., 
225  Mass.  235,  114  N.  E.  297;  Sax- 
on Mills  V.  New  York,  N.  H.  & 
H.  R.  Co.,  214  Mass.  38;^,  101  N. 
E.   1075. 

Michigan.  Harrison  Granite  Co. 
V.  Grand  Trunk  R.  R.  System,  175 
Mich.  144,  141  N.  W.  642;  Perked 
V.  Manistee  &  N.  E.  R.  Co.,  175 
Mich.   253,   141   N.   W.   607. 

Minnesota.  Ford  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  123  Minn.  87,  143 
N.  W.  249;  Dodge  v.  Chicago,  St. 
P.,  M.  &  0.  R.  Co.,  Ill  Minn.  123, 
126  N.  W.   627. 

Mississippi.  Louisville  &  N.  R. 
Co.  V.  Price,  111  Miss.  3,  71  So.  161; 
Southern  Pac.  R.  Co.  v.  A.  J. 
Lyon  &  Co.,  107  Miss.  777,  Ann. 
Cas.  1917D  171,  66  So.  209;  Ameri- 
can Exp.  Co.  V.  Burke  &  McGuire, 
104  Miss.  275,  61  So.  312;  Jones 
V.  Southern  Exp.  Co.,  104  Miss. 
126,  61  So.  165. 

Missouri.  Brockman  Commis- 
sion Co.  V.  Missouri  Pac.  R.  Co., 
195   Mo.  App.   607,   188   S.  W.   920; 


Cudahy  Packing  Co.  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  193  Mo.  App.  572, 
187  S.  W.  149;  Donoho  v.  Missouri 
Pac.  R.  Co.,  193  Mo.  App.  610,  187 
S.   W.  141;     Bowles  v.  Quincy,  0. 

&    K.    C.    R.    Co.,    Mo.    App. 

•,    187    S.    W.    131;     Conley    v. 

Chicago,  B.  &  Q.  R.  Co.,  192  Mo. 
App.  534,  183  S.  W.  1111;  Ball  v. 
Lusk,  189  Mo.  App.  297,  175  S. 
W.  238;  Bailey  v.  Missouri  Pac. 
R.  Co.,  184  Mo.  App.  457,  171  S. 
W.  44;  Morrison  Grain  Co.  v.  Mis- 
souri Pac.  R.  Co.,  182  Mo.  App. 
339,  170  S.  W.  404;  Hamilton  v. 
Chicago  &  A.  R.  Co.,  177  Mo.  App. 
145,  164  S.  W.  248;  Bledsoe  v. 
Missouri,  K.  &  T.  R.  Co.,  177  Mo. 
App.  153,  164  S.  W.  183;  Johnson 
Grain  Co.  v.  Chicago,  B.  &  Q.  R. 
Co.,  177  Mo.  App.  194,  164  S.  W. 
182;  Sims  v.  Missouri  Pac.  R.  Co  , 
177  Mo.  App.  18,  163  S.  W.  275; 
Joseph  V.  Chicago,  B.  &  Q.  R.  Co., 
175  Mo.  App.  18,  157  S.  W.  837. 

Nebraska.  Gilinsky  v.  Illinois 
Cent.  R.  Co.,  98  Nebr.  858,  154  N. 
W.  730. 

New  Hampshire.  Colby  v.  Amer- 
ican Exp.  Co.,  77  N.  H.  548,  94 
Atl.  198. 

New  Jersey.  Olivit  Bros.  v. 
Pennsylvania  R.  Co.,  88  N.  J. 
L.  241,  96  Atl.  582;  Standard 
Combed  Thread  Co.  \.  Pennsyl- 
vania R.  Co.,  88  N.  J.  L.  257,  L. 
R.  A.  191-3C  606,  95  Atl.  1002; 
Spada  V.  Pennsylvania  R.  Co.,  86 
N.  J.   L.   187,   92  Atl.   379. 

New  Mexico.  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Rodgers,  16  N.  M.  120, 
li:^  Pac.  805. 

New  York.  Dodge  &  Dent  Mfg. 
Co.  V.  Pennsylvania  R.  Co.,  175  N. 
Y.  App.  Div.  823,  162  N.  Y.  Supp. 
549;  De  Rochemont  v.  Boston  &  M. 
R.  Co.,  171  N.  Y.  App.  Div.  262,  157 
N.  Y.  Supp.  17;  Fitch,  Cornell  & 
Co.  v.  Atchison,  T.  &  S.  F.  R.  Co., 


§  70] 


Amendments    to    Commerce    Act. 


173 


under  no   obligation   to  construct  a   switch   connection 


170  N.  Y.  App.  Div.  222,  155  N.  Y. 
Supp.  1079;  Cheney  Piano  Action 
Co.  V.  New  York  Cent.  &  H.  River 
R.  Co.,  16G  N.  Y.  App.  Div.  706, 
152  N.  Y.  Supp.  285;  Wien  v.  New 
York  Cent.  &  River  R.  Co.,  1C6  N. 
Y.  App.  Div.  766,  152  N.  Y.  Supp. 
154;  Davenport  v.  Chespeake  &  0. 
R.  Co.,  87  N.  Y.  Misc.  303,  149  N. 
Y.  Supp.  865;  Ferrari  v.  New  York 
Cent.  &  H.  River  R.  Co..  162  N.  Y. 
App.  Div.  6,  147  N.  Y.  Supp.  376; 
Barstow  v.  New  York,  N.  H.  &  H. 
R.  Co.,  158  N.  Y.  App.  Div.  665,  143 
N,  Y.  Supp.  983;  United  Lead  Co. 
V.  Lehigh  Valley  R.  Co.,  156  N.  Y. 
App.  Div.  525,  141  N.  Y.  Supp.  310; 
Shultz  v.  Skaneateles  R.  Co.,  145 
N.  Y.  App.  Div.  906,  129  N.  Y.  Supp. 
1146;  Welch  Lumber  Co.  v.  Norfolk 
&  W.  R.  Co.,  137  N.  Y.  App.  Div. 
248,  121  N.  Y.  Supp.  985;  De 
Winter  &  Co.  v.  Texas  Cent.  R.  Co., 
150  N.  Y.  App.  Div.  612,  135  N.  Y. 
Supp.  893. 

North  Carolina.  Washington 
Horse  Exch.  v.  Louisville  &  N.  R. 
Co.,  171  N.  C.  65.  87  S.  E.  941; 
Newborn  d  Co.  v.  Louisville  &  N. 
R.  Co.,  170  N.  C.  205,  87  S.  E.  37; 
Baldwin  v.  Atlantic  Coast  Line 
R.  Co.,  170  N.  C.  12,  86  S.  E.  776. 

North  Dakota.  Knapp  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co., 
34  N.  D.  466,  159  N.  W.  81;  Cook 
v.  Northern  Pac.  R.  Co.,  32  N.  D. 
340,  L.  R.  A.  1916D  345,  155  N. 
W.  867. 

Oklahoma.     St.  Louis  &  S.  F.  R. 

Co.  V.  Akard,  Okla    ,  159 

Pac.  344;  St.  Louis  &  S.  F.  R.  Co. 

V.  Wynn, Okla.  ,  156  Pac. 

346;    St.   Louis  &   S.  F.  R.  Co.  v. 

Wood,   Okla.   ,    152    Pac. 

848;    Missouri,  O.  &  G.  Ry.  Co.  v. 

French,  Okla.  ,  152  Pac. 

591;  Chicago,  R.  L  &    P.  R.  Co.  v. 
Bruce,  Okla.  ,   150   Pac. 


880;  St.  Louis  &  S.  F.  R.  Co.  v. 
Mounts,  44  Okla.  359.  144  Pac. 
1036;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Harrington,  44  Okla.  41,  143  Pac. 
325;  St.  Louis  &  S.  F.  R.  Co.  v.  Cox. 
Peery  &  Murray,  4o  Okla.  258,  138 
Pac.  144;  St.  Louis  &  S.  F.  R.  Co. 
V.  Zickafoose,  39  Okla.  302,  6  N.  C. 
C  A.  717,  135  Pac.  400-  Missouri. 
K.  &  T.  R.  Co.  V.  Walston,  37  Okla. 
517,  133  Pac.  42. 

Oregon.  Grice  v.  Oregon-Wash- 
ington R.  &  Nav.  Co..  78  Or.  17,  150 
Pac.  862,  152  Pac.  509;  Zoller  Hop 
Co.  V.  Southern  Pac.  Co.,  72  Or. 
262,   143  Pac.  931. 

Pennsylvania.  United  States 
Horseshoe  Co.  v.  American  Exp. 
Co.,  250  Pa.  527,  95  Atl.  706; 
Wright  v.  Adams  Exp.  Co.,  230  Pa. 
635,   79  Atl.  760. 

South  Carolina.  Harman  v. 
Southern  Ry.  Co.,  106  S.  C.  209, 
90  S.  E.  1023;  De  Loach  v.  South- 
ern R.  Co.,  106  S.  C.  155,  90  S.  E. 
701;  Aldrich  v.  Atlantic  Coast 
Line  R.  Co.,  104  S.  C.  364,  89  S.  E 
315;  Pinkussohn  Cigar  Co.  v.  Clyde 
S.  S.  Co.,  101  S.  C.  429,  85  S.  E. 
1060;  Spence  v.  Southern  Ry.  Co., 
101  S.  C.  436:  85  S.  E.  1058;  Park  v. 
Southern  Ry.  Co.,  78  S.  C.  302,  58 
S.  E.  931. 

South  Dakota.  Elliott  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.,  35  S.  D.  57, 
150  N.  W.  777. 

Tennessee  Louisville  &  N.  R. 
Co.  v.  Hobbs,  136  Tenn.  512,  190 
S.  W.  461:  Rather  &  Co.  v.  Nash- 
ville, C.  &  St.  L.  R.  Co.,  131  Tenn. 
289,  174  S.  W.  1113;  Di-ake  v.  Nash- 
ville, C.  &  St.  L.  R.  Co..  125  Tena. 
627.  148  S.  W.  214. 
Texas.     Chicago,  R.   I.  &  G.  Ry. 

Co.  V.  W^haley,  Tex.  Civ.  App. 

,  190  S.  W.  833;    Atchison.  T. 

&  S.  F.  Ry.  Co.  V.  Smyth, Tex. 

Civ.    App.     .     189     S.   W.     70; 

Kansas  City,   M.   &  O.  Ry.  Co.  of 


174  Duties  to  Interstate  Shippers.  [§  70 

with  a  private  siding."  But,  under  paragrapli  2  of 
section  3  of  the  Act,  the  Commission  had  the  power 
to  order  switch  connections  when  the  carrier's  failure 
to  do  so  constituted  a  discrimination  against  a  particu- 
lar shipper.'*  However,  in  the  absence  of  discrimina- 
tion, the  Commission  had  no  authority  to  compel  a 
switch  connection,  with  lateral  branch  lines  or  private 
sidings  prior  to  the  Hepburn  Act  of  1906  when  the 
following  amendment  was  made  to  Section  1  of  the 
Act:"  "Any  common  carrier  subject  to  the  provisions 
of  this  Act,  upon  application  of  any  lateral,  branch 
line  of  railroad,  or  of  any  shipper  tendering  interstate 
traffic  for  transportation,  shall  construct,  maintain,  and 
operate  upon  reasonable  terms  a  switch  connection 
with  any  such  lateral,  branch  line  of  railroad,  or  private 
side  track  which  may  be  constructed  to  connect  with  its 
railroad,  where  such  connection  is  reasonably  practi- 
cable and  can  be  put  in  with  safety  and  will  furnish 
sufficient  business  to  justify  the  construction  and  main- 
tenance of  the  same;  and  shall  furnish  cars  for  the 
movement  of  such  traffic  to  the  best  of  its  ability  with- 

Texas  v.  Corn, Tex.  Civ.  App.  Wis.  404,  150  N.  W.  508;    Beat  v. 

^  186   S.  W.  807;  Pacific  Exp.  Great  Northern  R.   Co.,   159  Wi3. 

Co.  V.  Krower, Tex.  Civ.  App.  429,  150  N.  W.  484;  Aton  Piano  Co. 

,   163   S.   W.  9;   Galveston,  H.  y   Chicago,  M.  &  St.  P.  R.  Co.,  152 

&  S.  A.  Ry.  Co.  v.  Sparks, Tex.  ^jg   ^^q   ^39  j^   ^   743 

Civ.    App.    ,    162    S.    W.    943;  ^^     j^^^^^    ^    Newport   News    & 

Pacific  Exp.  Co.  V.  Ross, Tez.  ^    ^    ^^     ^3  ^    ^    ^    95_  g5  p^^ 

Civ.    App.    ,    154    S.    W.    340;  ^^^ 

:Southern    Pac.    R.    Co.    v.    W     T.  ^^     ^^^^^^^^  ^  Drovers'  Stock- 

Meadors  &  Co.,  104  Tex.  469,  140  S.  ^^^^^  ^^   ^  Louisville,  14  C.  C.  A. 

W.  427;  Houston  &  T.  C.  r^Co   v.  ^90,  67  Fed.  35;  Red  Rock  Fuel  Co. 
Lewis,  103  Tex.  452,  129  S.  W.  594.  '  ^   ^    „    r.       -1-1   t    r. 

Washington.     Henry  v.  Chicago.  ^-  Baltimore  &  0.  R.  Co.,  11  I.  C. 

M.  &  P.  3.  R.  Co.,  84  Wash.  633.  C.  438. 

-.Anr,       Ao-  19.     The  clauses  in  parentheses 

147  Pac.  42.0. 

West   Virginia.     Karr   v.   Balti-  were    inserted    by   amendment   in 

more  &  O.  R.  Co.,  76  W.  Va.  526,  1910.      See    Interstate    Commerce 

86  S  E   43  Commission  v.  Delaware,  L.  &  W. 

Wisconsin.     Bichlmeir  v.  Minne-  R.  Co.,  216  U.  S.  531,  54  L.  Ed.  605. 

apolis.  St.  P.  &  S.  S.  M.  R.  Co.,  159  30  Sup.  Ct.  415. 


§  71]  Amkndmf.xts  to  Commerce  Act.  175 

out  discrimination  in  favor  of  or  against  any  such 
shipper.  If  any  common  carrier  shall  fail  to  install 
and  operate  any  such  switch  or  connection  as  afore- 
said, on  ap])Iication  therefor  in  writin^^  hy  any  shii)]ier 
(or  owner  of  such  lateral,  hran(;h  line  of  railroad),  such 
shipper  (or  owner  of  such  lateral,  branch  line  of  rail- 
road) may  make  complaint  to  tiie  Commission,  as 
provided  in  section  thirteen  of  this  Act,  and  the  Com- 
mission shall  hear  and  investigate  the  same  and  shall 
determine  as  to  the  safety  and  practicability  thereof 
and  justification  and  reasonable  compensation  therefor, 
and  the  Commission  may  make  an  order,  as  provided 
in  section  fifteen  of  this  Act,  directing  the  common 
carrier  to  comply  with  the  provisions  of  this  section  in 
accordance  with  such  order,  and  such  order  shall  be 
enforced  as  hereinafter  provided  for  the  enforcement 
of  all  other  orders  by  the  Commission,  other  tlian 
orders  for  the  payment  of  money." 

Under  this  amendment  it  is  the  duty  of  an  interstate 
carrier  to  make  connections  witli  a  lateral  branch  rail- 
road or  a  private  side  track  (a)  when  such  switch  con- 
nection is  reasonably  practicable,  (b)  can  be  put  in  with 
safety,  and  (c)  will  furnish  sufficient  business  to  justify 
its  construction  and  iiiainteiiance.-"' 

§  71.  Carriers  Prohibited  from  Ov^^ning  or  Having 
an  Interest  in  Freight  Transported— the  Commodity 
Clause.  In  the  enforcement  of  the  provisions  of  the 
original  act  prohibiting  discriminations  and  preferences 
by  carriers  against  shippers,  it  became  evident  that 
the  ownership  of  shipping  corporations  by  carrying 
corporations  was  a  source  of  favoritism  and  inequality 
that  could  not  be  prohibited  under  the  statute  as  it 
then  stood.  Complete  freedom  from  discriminations 
among   shippers,   it  was  discovered,   could   be   secured 

20.    United    States   v.    Baltimore  Co.,  14  I.  C.  C.  611;  Railway  Valley 

&  O.  S    W.  R.  Co.,  226  U.  S.  14,  57  R.  Co.  v.  Delaware,  L.  &  W.  R.  Co.. 

L.  Ed.  104,  33  Sup.  Ct.  5;  Winters  14  I.  C.  C.  191;  Barden  &  Swartout 

Metallic  Paint  Co.  v.  Chicago,  M.  v.  Lehigh  Valley  R.  Co.,  12  I.  C. 

&  St.  P.  R.   Co.,  16   I.  C.  C.   687:  C  193. 
McCormick  v.  Chicago,  B.  &  Q.  R. 


176  Duties  to  Inteestate  Shippers.  [§  71 

only  by  a  soparatioD  of  the  business  of  transportation 
from  all  other  business.  In  the  eastern  coal  fields 
many  of  the  carriers  owned  collieries  from  which  they 
mined  coal  and  transported  it  in  interstate  commerce. 
Rival  owners  of  mines  suffered  thereby  and  were  fre- 
(piently  forced  to  sell  their  property  at  a  sacrifice  be- 
cause of  tliis  dual  ownersliip  and  the  advantages  there- 
by gained. 

For  many  years  previous  to  the  passage  of  the 
Hepburn  Act  of  1906,  there  were  constant  demands  by 
shippers  for  the  enactment  of  a  statute  which  would 
divorce  transportation  and  production  by  restricting 
common  carriers  to  a  performance  of  their  functions 
as  such,  and  restrain  them  from  entering  into  fields 
of  mining  and  manufacturing,  or  in  any  other  way 
becoming  competitors  with  those  to  wliom  their  services 
were  offered  and  sold.  Finally,  in  1906,  an  amendment 
to  section  1  of  the  Act,  was  adopted  prohibiting  a  com- 
mon carrier,  subject  to  the  statute,  from  transporting 
in  interstate  and  foreign  commerce,  any  article  or  com- 
modity manufactured,  mined  or  produced  by  it  or  under 
its  authority,  or  which  it  owned  in  whole  or  in  part, 
or  in  which  it  had  an  interest  direct  or  indirect,  ex- 
cept timber  and  the  manufactured  products  thereof, 
and  articles  necessary  and  intended  to  be  used  in  tlie 
conduct  of  its  business  as  a  common  carrier.  Tliis 
amendment  is  known  as  the  Commodity  Clause  and 
is  a  valid  exercise  of  the  power  conferred  upon  Congress 
under  the  commerce  clause  of  the  Constitution."^ 

§  72.  Amendments  Authorizing  Commission  to 
Prescribe  Through  Routes  and  Joint  Rates.  At  common 
law    the    establishment    and    maintcuauco    of    through 

21.    United    States   v.    Delaware,  274,  ,58  L.  Ed.  218,  34  Sup.  Ct.  75: 

L.    &   W.    R.    Co.,    238    U.    S.    516,  United  States  v.  Lehigh  Valley  R. 

59   L.   Ed.   1438,   35   Sup.   Ct.   873;  Co.,  220  U.  S.  257,  55  L.  Ed.  458, 

Delaware,  L.  &  W.  R.  Co.  v.  United  31  Sup.  Ct.  387;   United  States  v. 

States,    231   U.    S.    363,    58   L.   Ed.  Delaware  &  H.  Co.,  213  U.  S.  366, 

269,  34  Sup.  Ct.  65;   United  States  53  L.  Ed.  836,  29  Sup.  Ct.  527. 
V   Baltimore  &  O.  R.  Co.,  231  U.  S. 


§  '2] 


Amendmp:nts  to  CoMMERct;  Act. 


177 


routes  and  joint  rates  were  j^urely  matters  of  private 
contract  between  carriers."  I'nder  tlie  orij^inal  Act  to 
Regulate  Commerce,  it  was  i)iovided  by  the  second 
paragraph  of  Section  :>  tliat  the  carriers  should  inter- 
change traffic  with  one  another;  l)ut  the  statute  con- 
tained no  provision  h}  which  the  details  of  the  inter- 
change could  be  determined,  and  the  courts  held  that, 
as  at  common  law,  the  carriers  had  the  right  to  de- 
termine for  tliemselves  what  arrangements  for  through 
business  sliould  be  entered  into  and  upon  what  terms. ^' 
Prior  to  the  Hepburn  Act  of  ]906  the  carriers  sub- 
ject to  the  statute  were,  therefore,  under  no  legal  obli- 
gation to  establish  through  routes  or  joint  rates,  and 
were  at  liberty  to  withdraw  from  such  arrangements 
whenever  they  had  been  actually  entered  into.  Tn  its 
annual  report  for  the  year  11)05  the  Interstate  Commerce 


22.  Southern  Pac.  Co.  v.  Inter- 
state Commerce  Commission.  200 
U.  S.  536,  50  L.  Ed.  585,  26  Sup. 
Ct.  330;  Central  Stock  Yards  Co. 
V.  Louisville  &  N.  R.  Co.,  192  U.  S. 
568.  48  L.  Ed.  565,  24  Sup.  Ct.  339; 
Interstate  Commerce  Commission 
V  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.. 
167  U.  S.  479,  42  L.  Ed.  243,  17 
Sup.  Ct.  896;  Memphis  &  L.  R.  R. 
Co.  V.  Southern  Exp.  Co.,  117  U.  S. 
1.  29  L.  Ed.  791,  6  Sup.  Ct.  542. 
628;  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Denver  &  N.  0.  R.  Co..  110  U.  S. 
667,  28  L.  Ed.  291,  4  Sup.  Ct.  185; 
Gulf.  C.  &  S.  Ry.  Co.  v.  Miami  S. 
S.  Co.,  30  C.  C.  A.  142,  86  Fed. 
407;  Prescott  &  A.  C.  R.  Co.  v. 
Atchison,  T.  &  S.  F.  R.  Co..  73  Fed. 
438:  Little  Rock  &  M.  R.  Co.  v.  St. 
Louis  Southwestern  Ry.  Co..  11  C. 
C  A.  417,  63  Fed.  775,  26  L.  R.  A. 
192;  Little  Rock  &  M.  R.  Co.  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.,  59  Fed. 
400;  Patten  v.  Union  Pac.  Ry.  Co.. 
29  Fed.  590;  Capehart  v.  Louisville 
&  N.  R.  Co..  4  I.  C.  C.  265,  3  I.  C.  R. 
268;  Little  Rock  &  M.  R.  Cn.  v. 
East    Tennessee.   V.    &   G.   R.    Co.. 

1    rnntr"!    rarriris    1 '_' 


3  I.  C.  C.  1.  2  I.  C.  R.  54:  Chicaeo 
&  A.  R.  Co.  V.  Pennsylvania  R.  Co., 
I.  C.  C.  86,  1  I.  C.  R.  357. 

23.  In  re  Lennon,  166  U.  S.  548, 
41  L.  Ed.  1110,  17  Sup.  Ct.  658: 
Allen  &  Lewis  v.  Oregon,  R.  &  Nav. 
Co.,  98  Fed.  16;  Gulf,  Co.  &  S.  Ry. 
Co.  v.  Miami  S.  S.  Co.,  30  C.  C.  A. 
142,  86  Fed.  407;  Prescott  &  A.  C. 
R  Co.  V.  Atchison,  T.  &  S.  F.  R. 
Co.,  73  Fed.  438;  St.  Louis  Drayage 
Co.  V.  Louisville  &  N.  R.  Co..  65 
Fed.  39;  Ex  Parte  Lennon,  12  C.  C. 
A.  134,  64  Fed.  320;  Little  Rock 
&  M.  R.  Co.  V.  St.  Louis  South- 
we.stern  Ry.  Co.,  11  C.  C.  A.  417. 
63  Fed.  775.  26  L.  R.  A.  192;  Oregon 
Short  Line  &  U.  N.  Ry.  Co.  v. 
Northern  Pac.  R.  Co.,  9  C.  C.  A.  409. 
61  Fed.  158:  Chicago  &  N.  W.  Ry. 
Co.  V.  Osborne,  3  C.  C.  A.  347,  52 
Fed.  912;  Oregon  Short  Line  &  U. 
N.  Ry.  Co.  V.  Northern  Pac.  R.  Co.. 
51  Fed.  465;  Little  Rock  &  M.  R. 
Co.  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.. 
41  Fed.  559;  Kentucky  &  I.  Bridge 
Co.  V.  Louisville  &  N.  R.  Co..  .17 
Fed.   567.  2   L.   R.   A.   289. 


178 


Duties  to  Interstate  Shippers. 


[§  72 


Commission  recommended  to  Congress  an  amendment 
authorizing  it  to  order  throngli  routes  and  joint  rates 
and  to  prescribe  tlie  division  of  such  rates  which  the 
several  carriers  should  receive. 


Congress  then  in  1906 


24.  The  reasons  for  the 
proposed  amendment  were  thus 
stated  in  the  report:  "A  con- 
siderable part  of  the  interstate 
traffic  transported  by  rail  passes  in 
transit  over  the  lines  of  two  or 
more  independent  roads.  This 
traffic  is  generally  handled  by  the 
connecting  lines  under  some  ar- 
rangement for  the  transaction  of 
through  business  and  usually  up- 
on a  joint  rate — that  is  to  say,  the 
carriers  which  transport  the 
freight  or  carry  the  passenger 
agree  upon  a  rate  which  shall  be 
charged  from  the  point  of  origin 
to  destination,  and  also  agree  on 
the  proportions  in  which  this  rate 
shall  be  divided  among  themselves. 
Section  3  of  the  act  to  regulate 
commerce  attempts  to  secure  this 
interchange  of  traffic  by  connecting 
railways  and  to  prevent  unjust 
discrimination  by  any  carrier  be- 
tween its  different  connections.  It 
has  been  held,  however,  both  by 
the  courts  and  by  the  Commission, 
that  this  part  of  the  third  section 
is  not  enforceable,  because  no 
means  are  provided  for  determin- 
ing the  conditions  upon  which 
traffic  shall  be  interchanged  and 
the  proportions  of  the  through  rate 
which  shall  be  received  by  the 
several  carriers.  It  follows  that 
connecting  carriers  are  now  under 
no  legal  obligation  to  establish 
through  routes  or  joint  rates  and 
may  at  their  pleasure  withdraw 
from  such  arrangements  when  they 
have  been  actually  entered  into. 
It  is  evident  also  that  if  the  Com- 
mission were  to  pronounce  a  joint 
rate  unreasonable  and  order  a  re- 


duction of  that  rate  and  the  car- 
riers parties  to  the  rate  should 
thereupon  either  cancel  all  joint 
arrangements  or,  as  they  might 
cancel  their  joint  rates  upon  the 
commodity  in  question,  the  Com- 
mission mght  be  practically  power- 
less to  enforce  the  reduced  rate. 
When  it  is  considered  that  a  large 
part  of  the  most  important  rates 
of  this  country  are  joint  rates,  it 
will  be  seen  that  the  railways  have 
it  in  their  discretion  by  this  means 
to  largely  defeat  the  purpose  of 
the  law,  and  that  in  order  to  pre- 
vent this  the  Commission  should 
have  authority  to  order  railways 
to  continue  through  routes  and 
joint  rates  which  are  in  effect  and 
to  prescribe  the  divisions  which 
the  several  carriers  shall  receive 
in  the  distribution  of  those  rates 
in  case  they  fail  to  agree  among 
themselves.  This  is  a  power  which 
would  seldom,  if  ever,  be  exer- 
cised; but  its  existence  is  neces- 
sary to  prevent  the  occasion  for  its 
exercise.  It  should  also  be  noted 
that  discriminations  against  indi- 
viduals and  against  particular 
species  of  traffic  can  be  effected  by 
the  refusal  of  a  carrier  to  estab- 
lish a  joint  rate;  and  cases  are 
now  pending  before  the  Commis- 
sion involving  discriminations  of 
this  character.  The  hearing  of 
these  cases  has  not  yet  been  con- 
cluded, but  if  the  allegations 
.should  be  sustained  it  would  seem 
that  the  effective  way  to  correct 
the  wrong  would  be  by  compelling 
the  carrier  to  make  a  joint  rate 
upon  the  traffic  in  question." 


^  72]  Amendments  to  Commerce  Act.  179 

amended  sections  1  and  15  of  the  Act  by  providing  tliat 
it  was  the  duty  of  carriers  subject  to  the  statute  to  es- 
tablish through  routes  and  just  and  reasonabh^  rates 
applicable  thereto  and  authorizing  the  Commission, 
after  hearing  on  a  complaint,  to  establish  through  routes 
and  joint  rates  and  to  fix  the  terms  and  conditions 
under  which  those  rates  should  be  operated,  as  well  as 
to  prescribe  the  divisions  of  the  rates.  These  amend- 
ments, however,  contained  a  limitation  upon  the  juris- 
diction of  the  Commission  which  prescribed  that  no 
through  routes  could  be  established  where  a  reasonable 
or  satisfactory  route  already  existed.  The  clause  thus 
limiting  the  authority  of  the  Commission  prevented 
the  establishment  of  additional  through  routes-"'  and 
was  stricken  from  the  statute  by  the  amendment  of  1910. 
The  statute  giving  such  authority  to  the  Com- 
mission, as  amended  in  1910,  is  as  follows:  "The  Com- 
mission may  also,  after  hearing,  on  a  complaint  or  upon 
its  own  initiative  without  complaint,  establish  through 
routes  and  joint  classifications,  and  may  establish  joint 
rates  as  the  maximum  to  be  charged  and  may  prescribe 
the  division  of  such  rates  as  hereinbefore  provided 
and  the  terms  and  conditions  under  which  such  through 
routes  shall  be  operated,  whenever  the  carriers  them- 
selves shall  have  refused  or  neglected  to  establish  volun- 
tarily such  through  routes  or  joint  classifications  or 
joint  rates;  and  this  provision  shall  apply  when  one 
of  the  connecting  carriers  is  a  water  line.  The  Com- 
mission shall  not,  however,  establish  any  through  route, 
classification,  or  rate  between  street  electric  passenger 
railways  not  engaged  in  the  general  business  of  trans- 
porting freight  in  addition  to  their  passenger  and  ex- 
press business  and  railroads  of  a  difTerent  character, 
nor  shall  the  Commission  have  the  right  to  establish 
any  route,  classification,  rate,  fare,  or  charge  when  the 
transportation  is  wholly  by  water,  and  any  transporta- 

25.    Interstate    Commerce    Com-  held  that  the  existence  of  another 

mission  v.  Delaware,  L.  &  W.  R.  route  might   be   inquired   into   by 

Co.,  216  U.  S.  531,  54  L.  Ed.  605,  30  the  courts. 
Sup.  Ct.  415.  in  which   the  Court 


180  Duties  to  Interstate  Shippers.  [§72 

tion  by  water  affected  by  this  Act  shall  be  subject  to 
the  laws  and  regulations  applicable  to  transportation 
by  water.  And  in  establishing  such  through  route,  the 
Commission  shall  not  require  any  company,  without  its 
consent,  to  embrace  in  such  route  substantially  less  than 
the  entire  length  of  its  railroad  and  of  any  intermediate 
railroad  operated  in  conjunction  and  under  a  common 
management  or  control  therewith  which  lies  between 
the  termini  of  such  proposed  through  route,  unless  to 
do  so  would  make  such  through  route  unreasonably 
long  as  compared  with  another  practicable  through 
route  which  could  otherwise  be  established." 

§  73.  Commission  Authorized  to  Determine  Al- 
lowances to  Shippers  for  Services  Rendered  in  Connec- 
tion with  Transportation.  Both  before  and  since  the 
enactment  of  the  original  Act  to  Regulate  Commerce, 
shippers  have  frequently,  by  agreement  with  carriers, 
performed  a  part  of  the  transportation  service  for  which 
the  carriers  make  an  allowance  to  the  shippers.  This 
practice,  as  such,  has  never  been  condemned  by  Con- 
gress or  by  the  Commission  for  there  are  many  cases 
in  which  the  service  can  be  rendered  or  the  facility 
furnished  more  advantageously  to  the  shipper,  carrier 
and  the  public  by  the  shipj^er  himself  ;^°  but  such  allow- 
ances have  been  the  means  of  creating  unjust  discrimi- 
nations and  preferences  to  shippers  by  the  payment  of 

26.    Atchison,  T.  &  S.  F.  R.  Co.  Grand  Trunk  Western  R.  Co.,  131 

V.    United    States,    232    U.    S.    199,  C.  C.  A.  401,  215  Fed.  93;  Atchison, 

58   L.    Ed.    568,    34    Sup.    Ct.    291;  T.  &  S.  F.  Ry.  Co.  v.  United  States, 

United  States  v.  Baltimore  &  O.  R.  204    Fed.    647;    Knudsen-Ferguson 

Co.,  231  U.  S.  274,  58  L.  Ed.  218,  Fruit  Co.  v.  Chicago,  St.  P.,  M.  & 

34    Sup.    Ct.    75;    Mitchell    Coal    &  O.  R.  Co.,  79  C.  C.  A.  483,  149  Fed. 

Coke  Co.  V.  Pennsylvania  R.  Co.,  973;   Best  Co.  v.  Atchison,  T.  &  S. 

230  U.  S.  247,  57  L.  Ed.  1472,  33  F.  Ry.  Co.,  33  I.  C.  C.  1;   Inman, 

Sup.  Ct.  916;   Pennsylvania  R.  Co.  Akers  &  Inman  v.  Atlantic  C.  L.  R. 

V.  International  Coal  Min.  Co.,  230  Co.,    32    I.    C.    0.    146;    Tap    Line 

U.  S.  184,  57  L.  Ed.  1446,  33  Sup.  Ct.  Case,    31    I.    C.    C.    490;     Schultz- 

893,  Ann.  Cas.  1915A  315;     Union  Hansen  Co.  v.  Southern  P.  Co.,  18 

Pac.  R.  Co.  V.   Updike  Grain   Co.,  I.   C.   C.   234;    National   Wholesale 

222  U.  S.  215,  56  L.  Ed.  171,  32  Sup.  Lumber  Dealers'  Ass'n.  v.  Atlantic 

Ct.    39;     Cudahy    Packing    Co.    v.  C.  L.  R.  Co.,  14  I.  C.  C.  154. 


§  74]  Amendments  to  Commerce  Act.  181 

extravagant  ?:nms  ont  of  all  proportion  to  the  value  of 
the  service  rendered.  Unreasonable  sums  have  been 
frequently  allowed  when  the  shipper  was  the  owner  of 
one  of  the  faeilitics  of  transjjortation,  or  ])erf()nned 
any  part  of  th(;  transfer  service.-'  Such  preferences 
sometimes  took  the  form  of  an  excessive  division  to  a 
terminal  railroad  owned  !)>•  the  shipper;  tlie  payment 
of  an  excessive  elevator  charge  to  the  owner  of  grain, 
or  the  allowance  of  excessive  mileage  on  a  private  car 
which  conveyed  the  property  of  the  owner  of  the  car. 
Prior  to  1906,  one  of  the  evils  most  bitterly  com- 
plained of  by  shippers  in  this  regard  was  the  refrigera- 
tion charges  collected  by  companies  which  furnished 
refrigerator  cars  to  railioad  companies.  Following  an 
investigation  by  the  Commission  into  the  workings  of 
the  Armour  Car  Lines,  Congress  passed  as  a  part  of 
the  Hepburn  Act  of  1906  a  provision  in  the  form  of  an 
amendment  to  Section  15  of  the  Act  which,  with  the 
addition  of  the  phrase  *'on  its  owm  initiative"  after 
the  word  "or,"  passed  in  1910,  is  as  follows:  '*If  the 
owner  of  property  trans})orted  under  this  Act  directly 
or  indirectly  renders  any  service  connected  with  such 
transportation,  or  furnishes  any  instrumentality  used 
therein,  the  charge  and  allowance  therefor  shall  be  no 
more  than  is  just  and  reasonable,  and  the  Commission 
may,  after  hearing  on  a  complaint  or  on  its  own  initia- 
tive determine  what  is  a  reasonable  charge  as  the  maxi- 
mum to  be  paid  by  the  carrier  or  carriers  for  the  serv- 
ices so  rendered  or  for  the  use  of  the  instrumentality  so 
furnished,  and  fix  the  same  ))y  appropriate  order,  which 
order  shall  have  tlie  same  force  and  effect  and  be  en- 
forced in  like  manner  as  the  orders  above  provided 
for  under  this  section." 

§  74.  Amendment  of  1906  Prohibiting  the  Issuance 
and  Giving  of  Free  Passes — Persons  Excepted.  Section 
22  of  the   original    Act   as   amended    in    1SS9  and    1895 

27.  United  States  v.  Baltimore  Co.  v.  Interstate  Commerce  Com- 
&  0.  R.  Co.,  231  U.  S.  274,  58  L.  Ed.  mission,  219  U.  S.  433.  55  L.  Ed. 
218,  34  Sup.  Ct.  75;  Southern  Pac.       283.  31  Sup.  Ct.  288. 


182  Duties  to  Interstate  Shippers.  [^   74 

provided  that  nothing  in  the  statute  should  prevent 
transportation  of  certain  property"  named  therein  and 
certain  persons  free  or  for  reduced  rates  and  fares:  but 
the  Act  contained  no  express  provisions  prohibiting 
the  issuance  and  giving  of  free  transportation  to  pas- 
sengers. One  of  the  amendments  passed  as  a  part  of 
the  Hepburn  Act  of  1906  expressly  prohibited  all  car- 
riers subject  to  the  Act  from  giving  directly  or  indirect- 
1}^  any  interstate  free  ticket,  free  pass  or  free  transporta- 
tion to  passengers  except  to  certain  employes  and  other 
persons  specifically  mentioned  in  the  amendment.  Tliis 
anti-pass  provision  was  amended  in  1908  by  the  addition 
of  a  proviso  defining  the  terms  '' employes  and  fami- 
lies," and  in  1910  the  term  ''families"  was  further 
extended  so  as  to  include  widows  during  widowhood 
and  minor  children  during  minority,  of  persons  who 
died  while  in  the  service  of  a  common  carrier. 

Following  a  decision  of  the  Supreme  Court"^  hold- 
ing that  the  anti-pass  provision  was  exclusive  and  that 
express  companies  could  not  issue  franks  to  their  em- 
ployes or  the  emplo3^es  of  other  carriers,  this  section 
was  further  amended  in  1910  by  the  insertion  of  a 
proviso  declaring  that  nothing  in  the  Act  should  be 
construed  to  prohibit  the  privilege  of  passes  or  franks, 
or  the  exchange  thereof  with  each  other,  for  the  of- 
ficers, agents,  employes  and  their  families,  of  telephone, 
telegraph  and  cable  lines,  and  the  officers,  agents  and 
employes  and  their  families  of  other  carriers  subject 
to  the  Act.  As  passed  in  1906  this  provision  excepted 
boards  of  managers  of  soldiers'  and  sailors'  homes  from 
the  provisions  prohibiting  free  passes,  but  this  clause 
was  eliminated  in  1908.  The  list  of  persons  given  in 
this  amendment  who  may  receive  free  transportation, 
is  exclusive.^^ 

28.  American  Exp.  Co.  v.  United  (N.  S.)  671;  American  Exp.  Co.  v. 
States,  212  U.  S.  522,  53  L.  Ed.  635,  United  States,  212  U.  S.  522,  53 
29  Sup.  Ct.  315.  L-  Ed.  635,  29  Sup.  Ct.  315.     But 

29.  Louisville  &  N.  R.  Co.  v.  carriers  may  excliange  passes  with 
Mottley,  219  U.  S.  467,  55  L.  Ed.  common  carriers  not  subject  to 
297,  31  Sup.  Ct.  265,  34  L.  R.  A.  the  Act.    United  States  v.  Erie  R. 


§  74J  Amkndments  to  Commkrck  Act.  IS.*^* 

With  the  amendniGiits  herein  indicated,  the  anti- 
])ass  provision  now  reads  as  follows:^"  *'No  common 
carrier  subject  to  the  ])rovisions  of  this  Act  shall,  after 
January  first,  nineteen  linndred  and  seven,  directly  or 
indirectly,  issue  or  give  any  interstate  free  ticket,  free 
pass,  or  free  transportation  for  passengers,  except  to 
its  employees  and  their  families,  its  officers,  agents, 
surgeons,  physicians,  and  attorneys  at  law:  to  minis- 
ters of  religion,  traveling  secretaries  of  railroad  Young- 
Men's  Christian  Association,  inmates  of  hospitals  and 
charitable  and  eleemosynary  institutions,  and  persons  ex- 
clusively engaged  in  charitable  and  eleemosynary  work; 
to  indigent,  destitute,  and  homeless  persons,  and  to 
such  persons  when  transported  by  charitable  societies 
or  hospitals,  and  the  necessary  agents  employed  in  such 
ti'ansportation;  to  inmates  of  the  National  Homes  of 
State  Homes  for  Disabled  Volunteer  Soldiers,  and  of 
Soldiers'  and  Sailors'  Homes,  including  those  about  to 
enter  and  those  returning  home  after  discharge;  to 
necessary  care  takers  of  live  stock,  poultry,  milk,  and 
fruit;  to  employees  on  sleeping  cars,  express  cars,  and 
to  linemen  of  telegraph  and  telephone  companies;  to 
railway  mail  service  employees,  post-offiice  inspectors, 
customs  inspectors  and  immigration  inspectors;  to  news- 
boys on  trains,  baggage  agents,  witnesses  attending 
any  legal  investigation  in  which  the  common  carrier 
is  interested,  persons  injured  in  wrecks  and  physicians 
and  nurses  attending  such  persons:  Provided,  That 
this  provision   shall  not  be   construed   to   prohibit   the 

Co.,  236  U.  S.  259,  59  L.  Ed.  567,  442,  48  L.  Ed.  742,  24  Sup.  Ct.  515; 

35  Sup.  Ct.  396.  Northern    Pac.    R.    Co.    v.    Adams. 

30.    Stipulations   in   free   passes  192   U.   S.   440,   48   L.   Ed.   513,   24 

given  to  persons  entitled  to  receive  Sup.  Ct.   408;     Tripp  v.   Michigan 

them  under  the  statute  and  pro-  Cent.  R.  Co.,  151  C.  C.  A.  385,  238 

viding   that   the   carrier    shall   be  Fed.  449.  But  a  caretaker  of  live 

exempt  from  liability  for  injuries  stock  is  a  passenger  for  hire  and  a 

due     to     negligence,     are     valid.  stipulation  exempting  the  carrier 

Charleston    &    W.    C.    R.    Co.    v.  from  liability  is  invalid.     Norfolk 

Thompson.  234  U.  S.  576,  58  L.  Ed.  Southern   R.   Co.   v.  Chatman,  244 

1476,  34  Sup.  Ct.  964:    Boering  v.  T'.  S.  27<;.  fil  L.  Ed.  ll.U.  37  Sup. 

Chesapeake  Beach  R.  Co.,  193  U.  S.  Ct.  499,  L.  R.  A.  1917F  1128. 


184  Duties  to  Interstate  Shippers.  [§  74 

interchange  of  passes  for  the  officers,  agents,  and  em- 
ployees  of   common   carriers,    and    their   families;    nor 
to  i3rohibit  any  common  carrier  from  carrying  passen- 
gers free  with  the  object  of  providing  relief  in  cases 
of   general    epidemic,    pestilence,    or    otlier    calamitous 
visitation:     And  provided  further.  That  this  provision 
shall  not  be  construed  to  prohibit  the  privilege  of  pass- 
es or  franks,  or  the  exchange  thereof  with  each  other, 
for  the   officers,   agents,   employees,   and   their  families 
of  such  telegraph,  telephone,  and   cable  lines,  and  the 
officers,  agents,  employees  and  their  families  of  other 
common  carriers  subject  to  the  provisions  of  that  Act: 
Provided,  further.  That  the  term  "employees"  as  used 
in  this  paragraph  shall  include  furloughed,  ]:»ensioned, 
and  superannuated  employees,  persons  who  have  become 
disabled  or  infirm  in  the  service  of  any  such   common 
carrier,  and  the  remains  of  a  person  killed  in  the  em- 
ployment of  a  carrier  and  ex-emploA^ees  traveling  for 
the  purpose  of  entering  the  service  of  any  such  common 
carrier;  and  the  term  "families"  as  used  in  this  para- 
graph shall  include  the  families  of  those  persons  named 
in  this  proviso,  also  the  families  of  persons  killed,  and 
the    widows    during    widowhood    and    minor    children 
during   minority    or   persons   who    died,   while    in    the 
service  of  any  such  common  carrier.    Any  common  car- 
rier violating  this  provision  shall  l)e  deemed  guilty  of 
a   misdemeanor,    and    for   each    offense,    on   conviction, 
shall  pay  to  the  United   States  a  penalty  of  not  less 
than  one  hundred  dollars  nor  more  that  two  thousand 
dollars,   and    any   person,    othoi-   ihaii    the    persons   ex- 
cepted in  this  provision,  who  uses  any  such  interstate 
free  ticket,  free  pass,  or  free   transportation   shall   be 
subject  to  a  like  penalty.    Jurisdiction  of  offenses  under 
this  provision  shall  be  the  same  as  that  provided  for 
offenses  in  an  Act  entitled  "An  Act  to  further  regiilate 
commerce  with  foreign  nations  and  among  the  States," 
approved   February  nineteenth,   nineteen   hundred   and 
three,  and  anv  amendment  thereof." 


*^  75 J  Amendments  to  (.'ommkrck  Act.  185 

§  75.  Forms  of  All  Accounts,  Records,  and  Mem- 
oranda Kept  by  Interstate  Carriers  Placed  under  Juris- 
diction of  Commission..  Section  20  of  the  statute  was 
extensively  amended  by  tlu*  TTepljuiii  Act  of  190(5.  Wliile 
the  original  act  required  the  iiling  of  annual  reports  by 
interstate  carriers  with  the  Commission,  no  adeciuate 
means  were  provided  for  the  effective  enforcement  of 
that  duty.^^  Nor  were  the  officers  of  the  carriers  re- 
quired to  certify  under  oath  to  the  correctness  of  their 
returns. 

One  of  the  amendments  of  190G  ])rovided  that  if 
any  carrier  subject  to  the  act  should  fail  to  make  and 
file  its  annual  report  within  the  time  fixed  by  the  Com- 
mission, or  should  fail  to  make  specific  answers  to  any 
question  authorized  by  the  law,  within  thirty  days  from 
the  time  it  was  re(iuired  to  do  so,  such  carrier  should 
forfeit  to  the  United  States  the  sum  of  $100  for  each 
day's  violation.  As  further  amended  in  1910,  this  sec- 
tion, under  the  same  penalty,  authorized  the  Commission 
to  re(]uire  monthly,  periodical  or  special  reports  con- 
cerning any  matter  about  which  the  Commission  was 
authorized  to  inquire.  All  reports  were  required  to  be 
made  out  under  oath.  The  Commission  was  also  in  1906 
given  the  authority  to  jirescribe  the  forms  of  all  records, 
accounts,  and  memoranda  kept  by  the  carriers  including 
all  records  of  the  movement  of  traffic  as  well  as  the  re- 
ceipts and  expenditures  of  money.  The  Commission  was 
authorized  to  have  access  to  all  accounts,  records  and 
memoranda  kept  by  the  carriers  and  to  employ  special 
agents  or  examiners  to  inspect  and^examine  the  same.  The 
amendment  further  declared  it  to  be  unlawful  for  any 
carrier  to  keep  any  other  accounts,  records  or  mem- 
oranda than  those  prescribed  or  approved  by  the  Com- 
mission. 

A  failure  or  refusal  on  the  part  of  any  carrier  to 
keep  its  accounts,  records,  and  memoranda  on  the  books 

31.     Knapp  v.  Lake  Shore  &  M.      S.  R.  Co.,  197  U.  S.  530,  49  L.  Ed. 

870,  25  Sup.  Ct.  538. 


186  Duties  to  Interstate  Shippers.  [/§  75 

and  in  the  manner  prescribed  by  the  Commission  or  to 
submit  such  records  to  the  inspection  of  tiie  Commission 
or  its  authorized  agents,  subject  the  carrier  to  a  for- 
feiture of  the  sum  of  $500  for  each  offense  and  for  eacli 
day's  continuance  of  the  oft'ense.  The  statute  further 
decUu'ed  it  to  be  a  crime  for  aii}^  person  to  wilfully  make 
a  false  entry  in  such  records  or  to  wilfully  destroy  or 
falsify  any  such  records,  or  to  wilfully  neglect  to  make 
true  and  correct  entries  therein,  or  to  keep  any  other  ac- 
counts, records  or  memoranda  than  those  prescribed  or 
approved  by  the  Commission.  The  Commission  was  also 
authorized  to  issue  orders  prescribing  the  length,  of  time 
that  all  records  should  be  preserved  and  to  specify  what 
pajjers  might,  after  a  reasonable  time,  be  destroyed.  Any 
examiner  who  divulges  any  fact  which  comes  to  his 
knowledge  during  the  course  of  his  examination  of  the 
records  of  the  carrier,  except  as  directed  by  the  Commis- 
sion or  a  court  or  judge  thereof,  is  guilty  of  a  felony. 
The  district  courts  of  the  United  States  are  authorized 
upon  a  failure  to  comply  with  any  of  the  foregoing  provi- 
sions to  issue  a  writ  of  mandamus  requiring  the  carrier 
to  comply  with  the  act.^" 

The  broad  powers  given  to  the  Commission  to  secure 
a  uniform  system  of  accounts  by  all  carriers  subject  to 
the  act  under  the  provisions  of  Section  20  as  amended  in 
1906  and  1910  have  been  sustained  by  the  national  Su- 
preme Court ;^^  but  the  statute  as  amended  does  not  au- 
thorize the  Commission  to  inspect  the  correspondence  of 
a  carrier  between  its  various  officers  and  agents.^* 

32.  This  provision  was  passed  Co.,  224  U.  S.  194,  56  L.  Ed.  729, 
to  remedy  the  defect  pointed  out  in  32  Sup.  Ct.  436;  Baltimore  &  O.  R. 
Knapp  V.  Lake  Shore  &  M.  S.  R.  Co.  v.  Interstate  Commerce  Corn- 
Co.,  197  U.  S.  536,  49  L.  Ed.  870,  25  mission,  221  U.  S.  612,  55  L.  Ed. 
Sup.  Ct.  538.  878,  31  Sup.  Ct.  621.     See  also  in 

33.  Kansas  City  S.  R.  Co.  v.  re  Separation  of  Operating  Ex- 
United  States,  231  U.  S.  423,  58  L.  penses,  30  I.  C.  C.   676. 

Ed.  296,  34  Sup.  Ct.  125,  52  L.  R.  A.  34.    United   States   v.    Louisville 

(N.  S.)  1;  Interstate  Commerce  &  N.  R.  Co.,  236  U.  S.  318,  59  L.  Ed. 
Commission    v.    Goodrich    Transit      598,  35  Sup.  Ct.  363. 


§  76 J  Amendments  to  Commekce  Act.  1!^7 

§  76.  Amendments  and  Additions  to  the  Statute  by 
the  Mann-Elkins  Act  of  1910.  Tlie  f^uljsUuitivo  provi- 
sions oi"  llic  Interstate  Coiimierce  Act  were  fnrtlier  en- 
larged by  an  act  jiassed  on  June  18,  1910,  commonly 
known  as  the  Mann-Elkins  Law.^'  Briefly  this  amenda- 
tory statute  corrected  numerous  defects  in  the  law,  con- 
ferred upon  the  shipping  public  new  rights  and  remedies 
and  correspondingly  increased  the  jurisdiction  and  au- 
thority of  the  Commission.  It  provided  for  the  establish- 
ment of  a  commerce  court  composed  of  five  circuit  judges 
with  jurisdiction  formerly  given  to  the  circuit  courts 
over  cases  involving  the  enforcement  of  the  orders  of 
the  Commission,  except  tiiose  for  the  payment  of  money. 
This  court  was  created  for  the  purpose  of  securing 
prompt  decisions  on  questions  of  law  involving  inter- 
state transportation,  but  the  rulings  of  the  court  did  not 
seem  to  please  the  populace,  and  the  court  was  abolished 
by  an  act  of  Congress  approved  October  22,  1913.^*^  Tele- 
graph, telephone,  and  cable  companies,  wire  and  wire- 
less, engaged  in  sending  messages  from  one  state  to  an- 
other and  to  foreign  countries,  were,  by  this  amendment, 
placed  under  federal  control." 

Carriers  were  also  required  to  provide  reasonable 
facilities  for  operating  through  routes  and  to  make  rea- 
sonable rules  and  regulations  with  respect  to  the  ex- 
change, interchange  and  return  of  cars  used  therein,  and 
for  the  operation  of  such  through  routes.  Section  1  as 
amended  in  1910  further  declared  it  to  be  the  duty  of  all 
carriers,  subject  to  the  Act,  to  establish  and  enforce  just 
and  reasonable  classifications  of  property  for  transporta- 
tion, with  reference  to  which  rates,  tariffs,  regulations 
or  practices  might  be  made,  and  just  and  reasonable 
regulations  and  practices  affecting  classifications,  rates 
or  tariffs;  the  issuance,  form  and  substance  of  tickets, 
receipts  and  bills  of  lading;  the  manner,  and  method  of  - 
presenting,  marketing,  packing  and  delivering  property 
for  transportation;  the  facilities  for  transportation;  the 
carrying  of  pei-sonal,  sample  and  excess  baggage,  and  all 

.3.'i.    3<i   Stat,   at  L.   r^^O.  37.    Section    108.    infra. 

36.    38  Stat,  at  L.  219. 


188  Duties  to  Interstate  Shippkrs.  |  §  76 

other  matters  relating  to  or  connected  with  the  receiving, 
handling,  transporting,  storing,  and  delivering  of 
property  subject  to  the  provisions  of  the  statute  which 
might  be  necessary  or  proper  to  secure  the  safe  and 
prompt  receipt,  handling,  transportation  and  delivery  of 
property  upon  just  and  reasonable  terms,  and  every  un- 
just and  unreasonable  classification,  regulation,  and 
practice  with  reference  to  interstate  and  foreign  com- 
merce, was  declared  to  be  unlawful.  Section  6  of  the 
Act  was  further  amended  by  empowering  the  Commis- 
sion to  reject  any  schedule  tendered  for  filing  that  did 
not  provide  a  lawful  notice  of  its  effective  date.  A  pen- 
alty of  $250  payable  to  the  United  States,  was  provided 
for  the  failure  of  any  common  carrier  after  a  written 
request,  to  furnish  a  written  statement  of  a  rate  or 
charge  applicable  to  a  described  shipment  between  stated 
places  under  schedule  of  tariff  to  which  the  carrier  is  a 
party,  provided,  however,  the  person  making  such  re- 
quest suffers  damage  by  reason  of  such  refusal,  or  in 
consequence  of  the  misstatement  of  a  rate  either  through 
making  the  shipment  over  the  line  or  route  for  which 
the  property  rate  is  higher  than  the  rate  over  another 
available  line  or  route,  or  through  entering  into  any  sale 
or  contract  whereby  such  person  obligates  himself  to 
make  such  shipment  at  his  own  cost,  A  failure  on  the 
part  of  any  carrier  to  comply  with  the  terms  of  an^^ 
regulation  of  the  Commission  under  the  provisions  of 
section  6  subjected  the  carrier  to  a  penalty  of  $500  for 
each  offense  and  $25  for  each  day's  continuance  of  the 
offense. 

The  Act  as  written  prior  to  1910  provided  in  Sec- 
tion 13  that  the  Commission  might  institute  any  inquiry 
on  its  own  motion  in  the  same  manner  and  to  the  same 
effect  as  though  complaint  had  been  made.  This  clause 
was  enlarged  by  giving  the  Commission  full  authority 
and  power  at  any  time  to  institute  an  inquiry,  on  its 
own  motion,  in  any  case  and  as  to  any  matter  or  thing 
concerning  which  a  complaint  is  authorized  to  be  made, 
to  or  before  the  Commission  by  any  provision  of  tlie 
Act,  or  concerning  which  any  question  might  arise  under 


§  77]  Amendments  to  Commerce  Act.  189 

any  of  tlio  ]n-ovisions  of  the  Act,  or  rolatintr  to  tho  on- 
forcomont  of  any  of  the  provisions  of  the  Act.  Section 
15  was  amended  by  givin/jf  a  shipper  the  right  to  desig- 
nate in  writing  by  which  of  two  established  througli 
I'oiilos  liis  pro])erty  sliould  l>e  transported. 

An  amendment  to  Section  15  also  declared  it  to  be 
a  misdemeanor  foi-  any  common  earlier  or  any  agent 
thereof  to  knowingly  disclose  or  permit  any  person  otlier 
than  the  shipper  to  be  informed  concerning  the  nature 
and  character  of  property  transported  which  informa- 
tion might  be  used  to  the  detriment  or  prejudice  of  the 
shipper  or  which  might  improperly  disclose  his  business 
transaction  to  a  competitor.  If  a  carrier  does  not  com- 
ply with  an  order  of  the  Commission  for  the  payment  of 
money,  the  com])lainant  may  file  suit,  ])ursuant  to  an 
amendment  passed  in  11)10,  in  any  state  court  of  com- 
petent jurisdiction  as  well  as  in  the  federal  court.  Other 
amendments  passed  in  1910  are  noted  in  the  following 
paragraphs. 

§  77.  Fraudulent  Claims  for  Loss  and  Damage  by 
Shippers  Against  Carriers  Penalized.  By  an  amendment 
in  11)10  to  section  10  of  the  Act,  false  and  fraudulent 
claims  for  damages  in  connection  with  interstate  shi]v 
ments  by  any  person,  cor]>oration  or  company,  or  any 
agent  thereof,  delivering  proi)eity  for  transportation  or 
for  whom  any  carrier  shall  transport  pro]ierty,  whereby 
the  comjiensation  of  the  carrier  shall  be  made  less  than 
the  regular  rates,  is  declared  to  be  a  crime. 

The  purpose  of  this  enactment  was  to  stamj)  out  a 
practice  among  some  shippers  of  knowingly  presenting 
and  obtaining  damages  through  false  and  exaggerated 
claims  for  loss  or  injury  to  property  transported.  The 
amendment  reads  as  follows:  ''Any  person,  corporation, 
or  com]iany,  or  any  agent  or  officer  thereof,  who  shall 
deliver  property  for  transportation  to  any  common  car- 
rier subject  to  the  provisions  of  this  Act,  or  for  whom, 
as  consignor  or  consignee,  any  such  carrier  shall  trans- 
port property,  *  *  *  -vvho  shall  knowingly  and  wil- 
fully,  directly   or   indirectly,   himself  or   by   employee, 


190  Duties  to  Inteestate  Shippers.  [§  77 

agent,  officer,  or  otherwise,  by  false  statement  or  repre- 
sentation as  to  cost,  value,  nature,  or  extent  of  injury, 
or  by  the  use  of  any  false  bill,  bill  of  lading,  receipt, 
voucher,  roll,  account,  claim,  certificate,  affidavit,  or 
deposition,  knowing  the  same  to  be  false,  fictitious,  or 
fraudulent,  or  to  contain  any  false,  fictitious,  or  fraud- 
ulent statement  or  entry,  obtain  or  attempt  to  obtain  any 
allowance,  refund,  or  payment  for  damage  or  otherwise 
in  connection  with  or  growing  out  of  the  transportation 
of  or  agreement  to  transport  such  property,  whether 
with  or  without  the  consent  or  connivance  of  the  carrier, 
whereby  the  compensation  of  such  carrier  for  such  trans- 
portation, either  before  or  after  payment,  shall  in  fact 
be  made  less  than  the  regular  rates  then  established  and 
in  force  on  the  line  of  transportation,  shall  be  deemed 
guilty  of  fraud,  which  is  hereby  declared  to  be  a  mis- 
demeanor, and  shall,  upon  conviction  thereof  in  any 
court  of  the  United  States  of  competent  jurisdiction 
within  the  district  in  which  such  offense  was  wholly  or 
in  part  committed,  be  subject  for  each  offense  to  a  fine 
of  not  exceeding  five  thousand  dollars  or  imprisonment 
in  the  penitentiary  for  a  term  of  not  exceeding  two 
years,  or  both,  in  the  discretion  of  the  court:  Provided, 
That  the  penalty  of  imprisonment  shall  not  apply  to 
artificial  persons." 

§  78.     Power  Conferred  Upon  Commission  by  1910 
Amendment  to  Suspend  Proposed  Changes  in  Rates.  Un- 

(luestionably  the  most  important  and  far  reaching  of 
the  amendments  passed  in  1910  is  the  provision  added  to 
section  15  of  the  Act  giving  the  Commission  the  power 
to  suspend  schedules  of  rates  filed  with  it.  Authority 
is  given  the  Commission,  either  upon  complaint  or  upon 
its  own  initiative  without  complaint,  at  once  and  with- 
out answers  or  other  formal  pleading  by  the  interested 
carrier  but  upon  reasonable  notice,  to  enter  upon  a  hear- 
ing concerning  the  propriety  of  the  proposed  changes 
in  any  schedule  filed;  and  pending  such  hearing  and 
decision,  the  Commission,  upon  filing  with  sucli  schedule 
and  delivering  to  the  carrier  affected  a  statement  of  its 


§   (i)|  Amendments  to  Commerce  Act.  li)l 

reasons,  may  suspend  the  i)rivilege  of  any  such  scliedule 
for  a  period  not  longer  tlian  120  days  beyond  the  Hunt 
the  schedule  would  otherwise  go  into  effect.  If  tlie 
hearing  is  not  concluded  within  the  jx'iiod  of  suspen- 
sion, llie  Conimission  nuiy  extend  the  time  of  suspension 
for  a  further  period  of  six  months  when  the  proposed 
schedule,  if  not  acted  upon,  automatically  goes  into  ef- 
fect. After  hearing,  whether  completed  before  or  after 
the  schedule  goes  into  effect,  the  Commission  is  author- 
ized to  make  such  order  in  reference  to  the  schedule 
as  would  be  proper  in  a  proceeding  started  after  the 
schedule  had  become  eiTective. 

The  amendment  further  provides  that  at  any  hear- 
ing involving  a  rate  increased  after  the  passage  of  the 
Act  of  1910,  the  burden  of  proof  to  show  that  the  in- 
creased rate  or  proposed  increased  rate  is  just  and  rea- 
sonable, shall  l)e  upon  the  common  carrier.  Preference 
over  all  other  questions  pending  before  it  shall  be  given 
by  the  Commission  to  the  hearing  and  decision  of  such 
questions.  The  purpose  of  Congress  in  authorizing  the 
Commission  to  susi)end  proposed  schedules  resulted  from 
a  recognition  that  adequate  protection  for  the  shipper 
could  be  given  only  through  suspension  of  a  rate  until 
the  reasonableness  of  the  proposed  change  had  been 
determined. 

§  79.  The  1910  Amendment  to  the  Long  and  Short 
Haul  Provision.  Among  the  provisions  of  the  statute 
amended  by  the  Mann-Elkins  Act  of  1910  was  section 
4  prohibiting  carriers  from  charging  more  for  a  shorter 
distance  than  for  a  longer  distance  over  the  same  line 
in  the  same  direction  under  substantially  similar  cir- 
cumstances and  conditions.  Four  changes  were  made  in 
this  section.  The  clause  ''under  substantially  similar 
circumstances  and  conditions"  was  eliminated.  The  ef- 
fect of  this  change  was  to  take  from  the  carriers  the 
right  previously  lodged  in  them  to  decide  primarily 
whether  the  circumstances  and  conditions  were  so  dis- 
similar as  to  justify  a  greater  charge  for  the  shorter 
than  for  the  longer  haul,  and  to  transfer  that  lu-iniary 


1U2  Duties  to  Interstate  Shippers.  [§79 

power  to  tlie  Commission.^*  The  prohibition  was  also 
amended  so  as  to  cover  "routes"  as  well  as  ''lines." 
The  third  change  in  the  section  was  the  statutory  adop- 
tion of  a  rule  theretofore  enforced  by  the  Commission 
prohibiting  a  greater  cliarge  for  a  through  route  than 
the  sum  of  the  locals  subject  to  tlie  provisions  of  the 
Act. 

An  additional  section  provides  that  whenever  a  car- 
rier by  railroad  in  competition  with  a  water  route  re- 
duces the  rates  to  or  from  competitive  points,  such  rates 
shall  not  be  increased  thereafter  without  the  consent  of 
the  Interstate  Commerce  Commission  and  unless  that 
body  finds  the  proposed  increase  rests  upon  other  con- 
ditions than  the  elimination  of  water  competition.  The 
following  is  now  the  form  of  tlie  fourth  section:  "That 
it  shall  be  unlawful  for  any  common  carrier  subject  to 
the  provisions  of  this  Act  to  charge  or  receive  any  great- 
er comiDensation  in  the  aggregate  for  the  transportation 
of  passengers,  or  of  like  kind  of  property,  for  a  shorter 
than  for  a  longer  distance  over  the  same  line  or  route  in 
the  same  direction,  the  shorter  being  included  within  the 
longer  distance,  or  to  charge  any  greater  compensation 
as  a  through  route  than  the  aggregate  of  the  interme- 
diate rates  subject  to  the  provisions  of  this  act;  but  this 
shall  not  be  construed  as  authorizing  any  common  car- 
rier within  the  terms  of  this  Act  to  charge  or  receive 
as  great  compensation  for  a  shorter  as  for  a  longer  dis- 
tance: Provided,  however,  That  upon  application  to 
the  Interstate  Commerce  Commission  such  common  car- 
rier may,  in  special  cases,  after  investigation,  be  author- 
ized by  the  Commission  to  charge  less  for  longer  than 
for  shorter  distances  for  the  transportation  of  passengers 
or  property";  and  the  Commission  may  from  time  to  time 
prescribe  the  extent  to  which  such  designated  common 
carrier  may  be  relieved  from  the  operation  of  this  sec- 
tion: Provided,  further,  That  no  rates  or  charges  law- 

38.    United    States    v.    Atchison,      T.  &  S.  F.  R.  Co..  234  U.  S.  476,  58 

L.  Ed.  1408,  34  Sup.  Ct.  986. 


§  80]  Amkn'dmknts  to  Commerck  Act.  193 

I'uUy  existing  at  tlie  time  of  the  ]>assage  of  this  amen- 
datory Act  shall  be  re(iuir((l  to  be  changed  by  reason 
of  the  provisions  of  this  section  prior  to  the  expiration  of 
six  months  after  the  passage  of  this  Act,  nor  in  any 
case  where  aj)plication  shall  have  been  tiled  before  the 
Commission,  in  accordance  wilh  the  provisions  of  this 
section,  niitil  a  detei-mination  of  such  ai)pli<'ation  by  the 
Connnission.  Whenever  a  carrier  by  railroad  shall  be  in 
comi)etition  with  a  water  route?  or  routes  reduces  the 
rates  on  the  carriage  of  any  species  of  freight,  to  or  from 
competitive  points,  it  shall  not  be  permitted  to  increase 
such  rates  unless  after  hearing  by  the  Interstate  Com- 
merce Commission  it  shall  be  found  that  such  proposed 
increase  rests  upon  changed  conditions  other  than  tlie 
elimination  of  water  competition." 

§  80.  Statutory  Duty  of  Carriers  to  Route  Inter- 
state Freight  as  Directed  by  Shippers.  Another  im- 
portant amendment  included  in  the  Mann-Elkins  Act  of 
1910  was  an  addition  to  section  15  of  the  Act  to  Regulate 
Commerce  which  provides  that  in  all  cases  where,  at  the 
time  of  delivery  of  property  to  any  common  carrier  by 
railroad,  for  transportation  subject  to  the  provisions  of 
the  act,  to  any  point  of  destination,  between  which  and 
the  point  of  such  delivery  for  shipment,  two  or  more 
through  routes  and  through  rates  shall  have  been  estab- 
lished as  provided  in  the  act,  to  which  through  rates 
and  through  routes  such  carrier  is  a  party,  the  person, 
firm  or  corporation  making  such  shipment,  subject  to 
such  reasonable  exceptions  and  regulations  as  the  Inter- 
state Commerce  Commission  shall  from  time  to  time 
prescribe,  shall  have  the  right  to  designate  in  writing 
by  which  of  such  through  loutes  such  property  shall 
be  transported  to  destination. 

This  amendment  further  provides  thai  it  sliali  tliere- 
upon  be  the  duty  of  the  initial  carrier  to  route  such 
property  and  issue  a  through  bill  of  lading  therefor  as 
so  directed,  and  to  transport  such  jn-operty  over  its  own 
line  or  lines  and  deliver  the  same  to  a  connecting  line 
or  lines  according  to  sncli  through  ront(\     The  connect- 

1    Lontrijl    Carrlors    1:5 


19-1:  Duties  to  Interstate  Shippers.  [■^  80 

ing  carriers  must  also  receive  such  property  and  trans- 
port it  over  their  lines  and  deliver  the  same  to  tlie  next 
succeeding  carrier  or  consignee  according  to  such  routing 
instructions  in  the  bill  of  lading.  A  shipper  is  given 
the  right  under  this  amendment  to  determine,  when  com- 
peting lines  of  railroad  constitute  portions  of  a  through 
line  or  route,  over  which  of  said  competing  lines  so  con- 
stituting a  portion  of  said  through  line  or  route,  his 
freight  shall  be  transported. 

§  81.  Carriers  and  Their  Agents  Prohibited  from 
Giving  Information  Relating  to  Business  of  Interstate 
Shippers.  One  of  the  amendments  of  1910  to  section  15 
of  the  Act  prescribes  that  it  shall  be  unlawful  for  any 
common  carrier  subject  to  the  provisions  of  the  act,  or 
any  officer,  agent  or  employe  of  such  carrier,  or  for  any 
other  person  or  corporation  lawfully  authorized  by  such 
common  carrier  to  receive  information  therefrom,  know- 
ingly to  disclose  to  or  permit  to  be  acquired  by  any 
person,  or  corporation,  other  than  the  shipper  or  con- 
signee, without  the  consent  of  such  shipper  or  consignee, 
any  information  concerning  the  nature,  kind,  quantity, 
destination,  consignee,  or  route  of  any  property  tendered 
or  delivered  to  such  carrier  for  interstate  transportation, 
which  information  may  be  used  to  the  detriment  or 
prejudice  of  such  shipper  or  consignee,  or  which  may 
improperly  disclose  his  business  transactions  to  a  com- 
petitor. 

The  amendment  further  provides  that  it  shall  be 
unlawful  for  any  person  or  corporation  to  solicit  or 
knowingly  receive  any  such  information  which  may  be 
so  used.  A  proviso  to  the  amendment  prescribes  that 
nothing  in  the  act  shall  be  construed  to  prevent  the 
giving  of  such  information  in  response  to  any  legal  pro- 
cess issued  under  the  authority  of  any  state  or  federal 
court,  or  to  any  officer  or  agent  of  the  government  of  the 
United  States,  or  of  any  state  or  territory,  in  the  exercise 
of  its  powers,  or  to  any  officer  or  other  duly  authorized 
person  seeking  such  information  for  the  prosecution  of 
persons  charged  with  or  suspected  of  crime;  or  informa- 


§  83]  Amkndmk.xt.s  'io  Commerc?:  Act.  ]().") 

tion  given  by  a  common  canicr  io  another  carrier  or  its 
(Inly  antliorizcd  a.i^cnt,  for  the  i)in-pose  of  adjusting?  mnt- 
nal  Irafiic  acconnts  in  tlie  ordiiuiry  course  of  business  of 
such  carriers.  Any  person,  corporation  or  association 
violating  any  of  the  fore^oin^^  i^rovisions  shall  be  deemed 
guilty  of  a  mi^^demeanor,  and,  for  each  offense,  on  con- 
viction, is  required  to  pay  to  the  United  States  a  penaltv 
of  not  more  than  $10,000. 

§  82.  Extension  of  Jurisdiction  of  Commission  over 
Water  Carriers  by  Panama  Canal  Act  of  1912.  The 
Panama  Canal  Act  of  ]f)12  extended  the  scope  of  the 
statute  and  gave  additional  authority  to  the  Interstate 
Commerce  Commission  over  water  carriers  by  amending 
sections  5  and  6  of  the  Act  to  Regulate  Commerce.  These 
amendments  are  elsewhere  explained.^" 

§  83.  Act  of  1913  Requiring  Commission  to  Ascer- 
tain Valuation  of  Property  Owned  or  Used  by  all  Inter- 
state Carriers.  A  stupendous  task  was  placed  upon  the 
Interstate  Commerce  Commission  by  the  statute  known 
as  the  Valuation  Act  of  1913.*°  For  the  purpose  of  secur- 
ing a  complete  and  accurate  inventory  and  valuation  of 
the  property  of  common  carriers  engaged  in  inter- 
state and  foreign  commerce,  this  law,  passed  in  the  form 
of  an  amendment  to  Section  19,  requires  the  Commission 
to  ascertain  and  report  the  value  of  all  the  property 
owned  or  used  by  every  common  carrier  subject  to  the 
provisions  of  the  Act. 

The  Commission  is  required  to  make  an  inventory 
of  the  property  of  each  carrier  and  show  the  value  there- 
of and  to  classify  the  physical  property  as  nearlv  as 
practicable  in  conformity  with  the  classification  of  ex- 
penditures for  road  and  equipment  as  prescribed  by  the 
Commission.  The  Commission  must  further  ascertain 
and  rejiort  as  to  each  ]nece  of  property  owned  or  used 
by  each  can-ier  for  its  ]iurposes  as  a  common  carrier 
together  with  tli(^  original  cost  to  date,  the  cost  of  reju'o- 

39.    Sections  95,  96  and  07,  infra  40.     Appendix,  A,  infra. 


llHi  Duties  to  Interstate  Shippers.  [§  83 

duction  new,  the  cost  of  reproduction  less  depreciation, 
and  an  analysis  of  the  methods  by  which  these  several 
costs  are  obtained  with  the  reasons  for  their  differences, 
if  any. 

The  Act  further  requires  tlie  Commission  to  ascer- 
tain and  rejiort  separately  other  values,  and  elements  of 
value,  if  any,  of  the  property  of  each  carrier,  and  an 
analysis  of  the  methods  of  valuation  employed  and  of 
the  reasons  for  any  differences  between  any  such  values 
and  each  of  the  foregoing  cost  values.  The  report  of 
,the  Commission  must  also  include  in  detail  and  separ- 
ately from  improvements,  the  original  cost  of  all  lands, 
rights  of  way  and  terminals  owned  or  used  for  the  pur- 
poses of  the  common  carriers,  and  ascertained  as  of  the 
time  of  dedication  to  public  use,  and  the  present  value 
of  the  same,  and  separately  the  original  and  present  cost, 
of  condemnation  and  damages  or  of  purchase  in  excess 
of  such  original  cost  or  present  value.  Such  investiga- 
tion and  report  is  required  also  to  show  separately  the 
property  held  for  purposes  other  than  those  of  the  com- 
mon carrier,  and  the  original  cost  and  present  value  of 
the  same  together  with  an  analysis  of  the  methods  of 
valuation  employed.  In  ascertaining  the  original  cof^t 
of  the  property  of  each  carrier,  the  Commission,  in  ad- 
dition to  such  other  elements  as  it  may  deem  necessary, 
is  required  to  investigate  and  report  upon  the  history 
and  organization  of  the  present  and  of  any  previous 
corporation  operating  such  property;  upon  any  increases 
or  decreases  of  stocks,  bonds,  or  other  securities,  in  any 
reorganization;  upon  moneys  received  by  any  such  cor- 
poration by  reason  of  any  issues  of  stocks,  bonds  or  other 
securities;  u])on  the  syndicating,  banking,  and  other 
financial  arrangements  under  which  such  issues  were 
made  and  the  expenses  thereof;  upon  the  net  and  gross 
earnings  of  such  corporation  and  shall  report  also  in 
detail  upon  the  expenditure  of  all  moneys  and  for  the 
purposes  for  which  the  same  were  expended.  The  Com- 
mission is  also  required  to  ascertain  and  report  the 
amount  and  value  of  any  aid,  gift,  grant  of  right  of  way, 
or  donation,  made  to  any  such  common  carrier,  or  to  any 


§  <S4j  Amendmk.nis   io  Commekce  Act.  197 

previous  corporation  oijcratiii^  sucli  property,  or  by  the 
Government  of  tlie  United  States  or  by  any  state,  coun- 
ty, munici})al  government,  or  by  individuals,  associations 
or  corporations.  An  elal)oi-ate  system  of  })rocedure  is 
tlien  provided  in  tlie  amendment  for  the  ascertainment 
of  the  valuation  of  the  ))roperties  of  the  carriers. 

§  84.  Amendment  of  1917  Penalizing  Persons  for  Ob- 
structing Movement  of  Interstate  Commerce  During  War. 
An  amendment  to  section  1  of  the  Act,  enacted  on  August 
10,  1917,  declares  it  to  be  a  crime  for  any  i)erson,  during 
the  war,  1o  knowingly  and  willfully  retard  or  obstruct 
the  orderly  conduct  or  movement  of  interstate  and  for- 
eign commerce.*  This  amendment  provides;  ''That  on 
and  after  the  approval  of  this  Act  any  person  or  persons 
who  shall,  dui-ing  the  war  in  which  the  Tnitod  States  is 
now  engaged,  knowingly  and  willl'nlly,  ])y  ])]iysical  force 
or  intimidation,  by  threats  of  physical  force,  obstruct  or 
retard,  or  aid  in  obstructing  or  retarding,  the  orderly 
conduct  or  movement  in  the  United  States  of  interstate 
or  foreign  commerce,  or  the  orderly  make-up  or  move- 
ment or  disposition  of  any  train,  or  the  movement  or 
disposition  of  any  locomotive,  car,  or  other  vehicle  on 
any  railroad  or  elsewhere  in  the  United  States  engaged 
in  interstate  or  foreign  commerce  shall  be  deemed  guilty 
of  a  misdemeanor,  and  for  every  such  oiTense  shall  be 
punishable  by  a  fine  of  not  exceeding  $100  or  by  im- 
])ris()nment  for  not  exceeding  six  months,  or  by  both 
such  fine  and  imprisonment;  and  the  President  of  the 
United  States  is  hereby  authorized,  whenever  in  his 
judgment  the  public  interest  requires,  to  employ  the 
armed  forces  of  the  United  States  to  prevent  any  such 
o])struction  or  retardation  of  the  passage  of  the  mail,  or 
of  the  orderly  conduct  or  movement  of  interstate  or 
foreign  commerce  in  any  ]iart  of  the  United  States,  or 
of  any  train,*  locomotive,  car,  or  other  vehicle  upon  any 
railroad  or  elsewhere  in  the  United  States  engaged  in 
interstate  or  foreign  commerce:  Provided,  That  nothing 
in  this  section  shall  be  construed  to  repeal,  modify,  or 
affect  either  section  six  or  section  twentv   of  an  Act 


198  Duties  to  Interstate  Shitpers.  [§  85 

entitled  'An  Act  to  supplement  existing  laws  against 
unlawful  restraints  and  monopolies,  and  for  other  pnr- 
jioses, '  approved  October  fifteenth,  nineteen  hundred  and 
fourteen." 

§  85.  President  Authorized  During  War  to  Direct 
Movement  of  Commodities  Essential  to  National  Defense. 
The  amendatory  act  referred  to  in  the  foregoing  para- 
graph further  provides  as  follows:  "That  during  the 
continuance  of  the  war  in  which  the  United  States  is 
now  engaged  the  President  is  authorized,  if  he  finds 
it  necessary  for  the  national  defense  and  security,  to 
direct  that  such  traffic  or  such  shipments  of  commodi- 
ties as,  in  his  judgment,  may  be  essential  to  the  nation- 
al defense  and  security  shall  have  preference  or  priority 
in  transportation  by  any  common  carrier  by  railroad, 
water,  or  otherwise.  He  may  give  these  directions  at 
and  for  such  times  as  he  may  determine,  and  may 
modify,  change,  suspend,  or  annul  them  and  for  any 
such  purpose  he  is  hereby  authorized  to  issue  orders 
direct,  or  through  such  person  or  persons  as  he  may 
designate  for  the  purpose  or  through  the  Interstate 
Commerce  Commission.  Officials  of  the  United  States, 
when  so  designated,  shall  receive  no  compensation  for 
their  services  rendered  hereunder.  Persons  not  in  the 
employ  of  the  United  States  so  designated  shall  receive 
such  compensation  as  the  President  may  fix.  Suitable 
offices  may  be  rented  and  all  necessary  expenses,  in- 
cluding compensation  of  persons  so  designated,  shall 
be  paid  as  directed  by  the  President  out  of  funds  which 
may  have  been  or  may  be  provided  to  meet  expendi- 
tures for  the  national  security  and  defense.  The  com- 
mon carriers  subject  to  the  Act  to  regulate  commerce 
or  as  many  of  them  as  desire  so  to  do  are  hereby  au- 
thorized without  responsibility  or  liability  on  the  part 
of  the  United  States,  financial  or  otherwise,  to  establish 
and  maintain  in  the  city  of  Washington  during  the 
period  of  the  war  an  agency  empowered  by  such  car- 
riers as  join  in  the  arrangement  to  receive  on  behalf 
of  them  all  notice  and  service  of  such  orders  and  direc- 


§  85]  Amendments  to  Commerce  Act.  199 

tions  as  may  be  issued  in  accordance  with  this  Act,  and 
service  upon  sucli  a^-ency  shall  be  good  service  as  to 
all  the  carriers  joining  in  the  establishment  thereof. 
And  it  shall  be  the  duty  of  any  and  all  the  officers, 
agents,  or  employees  of  such  carriers  by  railroad  or 
water  or  otherwise  to  obey  strictly  and  conform  prompt- 
ly to  such  orders,  and  failure  knowingly  and  willfully 
to  comply  therewith,  or  to  do  or  perform  whatever  is 
necessary  to  the  prompt  execution  of  such  order, 
shall  render  such  officers,  agents,  or  employees  guilty 
of  a  misdemeanor,  and  any  such  officers,  agents,  or  em- 
Vloyee  shall,  upon  conviction,  be  fined  not  more  than 
$5,000,  or  imprisoned  not  moie  than  one  year,  or  both, 
in  the  discretion  of  the  court.  For  the  transportation 
of  persons  or  property  in  carrying  out  tlie  orders  and 
directions  of  the  President,  just  and  reasonable  rates 
shall  be  fixed  by  the  Interstate  Commerce  Commission; 
and  if  the  transportation  be  for  the  Government  of  the 
United  States,  it  shall  be  paid  for  currently  or  monthly 
by  the  Secretary  of  the  Treasury  out  of  any  funds  not 
otherwise  appropriated.  Any  carrier  complying  with 
any  such  order  or  direction  for  preference  or  priority 
herein  authorized  shall  be  exempt  from  any  and  all 
provisions  in  existing  law  imposing  civil  or  criminal 
pains,  penalties,  obligations,  or  liabilities  upon  carriers 
by  reason  of  giving  preference  or  priority  in  compliance 
with  such  order  or  directi(m." 


CHAPTER  VI 

Common  Carriers  Subject  to  the  Interstate 
Commerce  Act. 

Sec.     8G.     The  Statutory  Provision. 

Sec.  87.  Who  are  Common  Carriers  Within  the  Meaning  of  the  Inter- 
state  Commerce   Act. 

Sec.  88.  Distinction  Between  Common  Carriers  and  Plant  Facilities 
— Industrial   Railways. 

Sec.  89.  All  Carriers  in  Territories,  District  of  Columbia  and  Alaska 
Included. 

Sec.  90.  When  Railroads  Wholly  Within  Limits  of  Single  State  are 
Under  Federal  Control — Former  and  Present  Rule. 

Sec.  91.  Carriers  Engaged  in  Transportation  Between  Points  in 
United   States   and   Adjacent   Foreign   Countries. 

Sec.  92.  Carriers  by  Water  Included  as  to  Continuous  Shipments 
Under  Common  Arrangements  with  Carriers  by  Rail. 

Sec.  93.  Independent  Ferry  Companies  Included  as  to  Shipments 
Under  Common  Arrangement  with  Rail  Carriers. 

Sec.  94.  Common  Control,  Management,  and  Arrangement  for  Con- 
tinuous  Transportation,    Defined   and   Explained. 

Sec.  95.  Extension  of  Federal  Jurisdiction  Over  Water  Carriers  by 
Panama  Canal  Act  of  1912. 

Sec.  9G.  Amendment  Applies  to  Traffic  Between  Two  Points  in  United 
States   Passing  Through   Panama   Canal  "or   Otherwise." 

Sec.  97.  Control  or  Ownership  of  Competitive  Water  Line  by  Rail 
Carrier  Subject  to  Approval  of  Commission. 

Sec.  98.  Policy  of  Congress  in  Adoption  of  That  Part  of  Panama 
Canal  Act  Forbidding  Ownership  of  Water  Lines  by  Rail- 
roads. 

Sec.     99.     Bridges  and  Bridge  Companies  Subject  to  Federal  Act,  When. 

Sec.  100.  Street  Railroads  Crossing  State  Lines  not  Subject  to  Inter- 
state Commerce  Act. 

Sec.  101.  Electric  Interurban  Railroads  Engaged  in  Interstate  Com- 
merce Controlled  by  Statute. 

Sec.  102.  Status  of  Terminal  Railroads  and  Belt  Lines  Participating 
in  Movement  of  Interstate  Traffic. 

Sec.  103.  Stock  Yards  Company  Transferring  Livestock  Between  its 
Pens  and  Tracks  of  Trunk  Lines,  a  Common  Carrier. 

Sec.  104.  Status  of  Logging  Roads  as  Interstate  Carriers — the  Tap 
Line  Cases. 

Sec.  105.  Private  Car  Lines  not  Common  Carriers  within  Meaning 
of  Act  to  Regulate  Commerce. 

Sec.  106.  Common  Carriers  of  Oil  and  Other  Commodities  by  Pipe 
Line  Included. 

Sec.  107.  Pipe  Line  Companies  Transporting  Solely  Their  Own  Oil 
Common   Carriers,  When. 

(200) 


§  8(5 1  (Jaiu;i i:i;s  rxDKK  (  ommkhck  Act.  201 

Sec.  108.  Assumption  of  National  Control  over  Interstate  and  For- 
oiftn  Cable,  Tclopiione  and  Telegraph  Companies. 

Sec.  109.  Independent  Express  Companies  Included  by  Hepburn 
Amendment  of  1906. 

Sec.  110.  Sleeping  Car  Companies  Placed  Under  .lurisdiction  of  Com- 
mission by  Hepburn  Act  of  1906. 

Sec.  111.     Receivers  and   Purchasers  Pendente   Lite. 

Sec.  112.  Railroad  Companies  Incorporated  in  Foreign  Countries  and 
Engaged    in    Interstate   Commerce. 

Sec.  113.  Statute  Applies  to  Individuals  and  Partnerships  as  Well  as 
Incorporated  Companies. 

§  86.  The  Statutory  Provision.  The  Act  to  ro^ni- 
late  comuu'ice  i>i('!?riil)es  tliat  its  i)rovisions  shall  apply 
to  any  corporation  or  any  persons  engaged  in  the  trans- 
j)()rtation  of  oil  or  other  commodity,  except  natural  or 
artificial  gas,  by  means  of  pipe  lines,  or  partly  by  pipe 
lines  and  partly  by  railroad,  and  to  telegraph,  telephone 
and  cable  companies  (whether  wire  or  wireless)  engaged 
in  sending  messages  from  a  State,  Territory,  or  District 
of  the  United  States,  to  any  other  State,  Territory  or 
District  of  the  United  States,  or  to  any  foreign  country, 
who  shall  be  considered  and  lield  to  be  common  carriers 
within  the  meaning  and  purpose  of  the  Act,  and  to  any 
common  carrier  or  carriers  engaged  in  the  transporta- 
tion of  passengers  or  property  wholly  by  railroad  (or 
partly  by  railroad  and  partly  by  water  when  both  are 
used  under  a  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  shipment),  from  one 
State  or  Territory  of  the  United  States  or  the  District 
of  Columbia,  or  from  one  i)lace  in  a  Territory  to  another 
place  in  the  same  Territory  or  from  any  place  in  the 
United  States  to  an  adjacent  foreign  country,  or  from 
any  place  in  the  United  States  through  a  foreign  coun- 
try to  any  other  place  in  the  United  States,  and  also 
to  the  transportation  in  like  manner  of  property  shipped 
from  any  place  in  the  United  States  to  a  foreign  country 
and  carried  from  such  ])lace  to  a  port  of  transshipment 
or  shipped  from  a  foreign  country  to  any  ]ilace  in  the 
United  States  and  carried  to  sucli  i)lace  from  a  port  of 
entry  either  in  the  United  States  or  an  adjacent  foreign 
country.     The   statute    further  provides   that    the   term 


202 


Duties  to  Interstate  Shippees. 


[§  86 


"common   carrier"   as  used   in  the  Act,    shall   include 
express  companies  and  sleeping  car  companies.^ 

§  87.  Who  are  Common  Carriers  Within  the  Mean- 
ing of  the  Interstate  Commerce  Act.  The  statute  ap- 
plies to  any  person  or  corporation  engaged  in  the  trans- 
portation of  persons  or  property  solely  by  railroad, 
or  partly  by  railroad  and  partly  by  water,  as  a  "common 
carrier."  The  act  does  not  define  the  term  "common 
carrier"  in  so  far  as  it  relates  to  water  and  rail  lines. 
Its  meaning,  therefore,  must  be  ascertained  by  its  com- 
mon law  use  and  application.^  Under  the  common  law, 
a  common  carrier  is  a  person  who  undertakes  to  trans- 
port for  hire  from  one  place  to  another,  passengers  or 
the  goods  of  those  who  choose  to  employ  him.^  In- 
corporation is  not  a  prerequisite  to  the  exercise  of  the 
functions  of  a  common  carrier  by  rail.* 


1.  Section  1  of  the  Act  to  Regu- 
late Commerce,  Appendix  A,  infra. 

2.  Manufacturers  Ry.  Co.  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.,  21  I.  C. 
C.  304;  Crane  Iron  Works  v.  Cen- 
tral R.  of  New  Jersey,  17  I.  C.  C. 
514;  Star  Grain  &  Lumber  Co.  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  17 
L  C.  C.  338;  Solvay  Process  Co.  v. 
Delaware,  L.  &  W.  R.  Co.,  14  L  C. 
C.  246;  General  Elec.  Co.  v.  New 
York  Cent.  &  H.  River  R.  Co.,  14 
I.  C.  C.  237. 

3.  United  States  v.  Union  Stock 
Yard  &  Transit  Co.  of  Chicago,  226 
U.  S.  286.  57  L.  Ed.  226,  33  Sup. 
Ct.  83;  Southern  Pac.  Terminal  Co. 
V.  Interstate  Commerce  Commis- 
sion, 219  U.  S.  498,  55  L.  Ed.  310, 
31  Sup.  Ct.  279;  Nordgard  v. 
Marysville  &  N.  R.  Co.,  134  C.  C 
A.  415,  218  Fed.  737;  Bay  v.  Mer- 
rill &  Ring  Lumber  Co.,  211  Fed. 
717;  United  States  v.  St.  Joseph 
Stockyards  Co.,  181  Fed.  625; 
Union  Stockyards  Co.  of  Omaha  v. 
United  States,  94  C.  C.  A.  626,  169 
Fed.   404.      "To    bring    a    person, 


therefore,  within  the  description 
of  a  common  carrier  the  following 
characteristics  must  appear:  1.  He 
must  be  engaged  in  the  business 
of  carrying  goods  for  others  as  a 
public  employment,  and  must  hold 
himself  out  as  ready  to  engage  in 
the  transportation  of  goods  for 
persons  generally  as  a  business, 
and  not  as  a  casual  occupation. 
2.  He  must  undertake  to  carry 
goods  of  the  kind  to  which  his 
business  is  confined.  3.  He  must 
undertake  to  carry  by  the  meth- 
ods by  which  his  business  is  con- 
ducted and  over  his  establish- 
ed road.  4.  The  transportation 
must  be  for  hire.  5.  An  action 
must  lie  against  him,  if  he  refuses 
without  sufficient  reason  to  carry 
such  goods  for  those  who  are  will- 
ing to  comply  with  his  terms." 
— Hutchinson  on  Carriers,  3d  ed. 
Vol.  1,  Sec.  48,  p.  42. 

4.  Truckers  Transfer  Co.  v. 
Charleston  &  W.  C.  Ry.  Co.,  27  I. 
C.  C.  275;  In  re  Wool,  Hide  &  Pelt 
Rates,  23  I.  C.  C.  151. 


§  88]  (.'aiuukhs  Under  Commerc?:  Act.  203 

If  a  company  holds  itself  out  to  the  public  as  a 
common  carrier  for  hire  and  invites  the  public  to  ac- 
cept its  service,  it  is  a  common  carrier  notwithstand- 
ing the  fact  that  a  considerable  jxjrtion  of  its  business 
consists  in  transporlin.i^  its  own  proi)erty,  or  property 
of  an  industry  with  which  it  is  associated.'  The  extent 
to  wliich  a  railroad  is  used  by  the  public  does  not 
determine  whether  it  is  a  common  carrier,  but  it  is 
the  right  of  the  public  to  use  its  facilities  and  to  de- 
mand service  of  it  that  determines  its  status  as  a  com- 
mon carrier."  Neither  is  its  status  as  a  carrier  deter- 
mined by  its  length.^ 

The  fact  that  freight  transported  by  a  carrier  is 
confined  principally  to  one  commodity  does  not  deprive 
it  of  its  status  as  a  common  carrier,  because  the  car- 
rier may  limit  the  kind  and  character  of  traffic  it  wishes 
to  transport.'  When  the  status  of  a  railroad  is  fixed 
as  a  common  carrier  it  owes  a  duty  to  the  public  at 
large  and  not  merely  to  those  who  have  been  accustomed 
to  patronize  it.'  No  other  duties  may  be  required  of  a 
person  under  the  Act  nor  rights  thereunder  be  accorded 
unless  the  person  is  a  common  carrier.^" 

§  88.  Distinction  Between  Common  Carriers  and 
Plant  Facilities — Industrial  Railways.  Large  industri- 
al establisliments  throughout  the  country,  and  especial- 
ly iron  and  steel  industries,  frequently  own  and  operate 
])lant  railways  in  connection  with  their  manufacturing 
departments.     These  systems  of  rails  and  locomotive's 

5.  Decatur  Nav.  Co.  V.  Louisville  ingham  S.  R.  Co.,  32  I.  C.  C  110- 
&  N.  R.  Co.,  31  I.  C.  C.  281.  See  Crane  R.  Co.  v.  Central  R.  Co.  of 
also  Manufacturers  Ry.  Co.  v.  Unit-  New  Jersey.  248  Pa  333  93  A.tl 
ed  States,  U.   S.  .  62  L.  1076 

^"TVr    fo.o"'-  ""'■  '''•  ^"''^'^  7. 'second    Industrial    Railways 

"^/•^   1^'   1^1^-  Case,  34  I.  C.  C.  596. 

6.  United  states  V.  Butler  Coun-  o     17.1  ^-^       ,,-,,. 

ty  R.  Co..  234  U.  S.  29.  58  L.  Ed.  ,  ^  iT.   ""''"^    '""'"^"^    ""'■     ^• 

1196,   34    Sup.   Ct.    748;    Tap   Line  ^^^'^^  ^  ^""^  ^-  ^''■'  ~'  ^-  ^-  ^■ 

Cases,  234  U.  S.  1,  58  L.  Ed.  1185,  ^'^- 

34   Sup.   Ct.   841;    Curry  &  Whyte  ^-    ^n  re  Mine  Ratings.  25  I.  C. 

Co.  V.   Duluth   &  I.   R.   R.   Co.,  32  C.  286. 

I.  C.  C.  162;  In  re  Advances  Joint  10.    In   :e  Joint    Rate   Cancella- 

Class  &  Commodity  Rates  v.  Birm-  tirn,   27   I.  C.  C.  353. 


20-1:  Duties  to  Interstate  Shippees.  [§88 

and  cars  used  tlieroon  in  and  abont  these  plants  are 
necessary  facilities  of  tlie  industries.  The  tracks  are 
used  not  only  for  the  movement  of  cars  between  the 
rails  of  the  line  carriers  and  the  various  points  within 
the  plant,  hut  they  are  re(|uired  also  for  the  prompt  and 
economical  movement  of  material  between  the  various 
departments  of  the  plant. 

Formerly  these  railways  were  operated  as  a  depart- 
ment or  bureau  of  the  industrial  company,  but  in  recent 
years,  many  of  them  have  been  operated  through  the 
means  of  an  incorporated  railroad  owned  by  the  industry 
for  the  purpose  mainly  of  assuming  the  characteristics 
of  a  common  carrier.  When  the  plant  tracks  were 
thus  taken  over  by  an  incorporated  railroad,  the  tracks 
of  the  latter  were  frequently  extended  around  the  plant 
in  such  a  manner  as  to  exclude  the  trunk  lines  from 
every  section  of  the  plant  except  over  the  rails  of  the 
newly  incorporated  industrial  railroad.  The  result  was 
an  apparent  intermediate  service  by  the  industrial 
railroad  between  the  plant  and  the  line  carrier,  on 
the  basis  of  which  the  plant  railroad  exacted  compensa- 
tion, not  from  the  industry,  but  out  of  the  rate  of  the 
line  carrier.  After  turning  over  to  the  subsidiary  rail- 
road company  the  plant  track  and  locomotives,  the 
industrial  railroad  company  then  claimed  to  be  a  com- 
mon carrier  and  entitled  to  a  division  of  the  rates  of 
the  trunk  lines. 

In  the  first  Industrial  Railways  Case^^  the  Commis- 
sion held  that  all  allowances  to,  or  divisions  of  rates 
with,  any  of  these  industrial  railroads  were  unlawful 
because  they  were  plant  facilities  and  not  common  car- 
riers with  rights  and  obligations  as  such.  But  follow- 
ing the  decision  of  the  United  States  Supreme  Court  in 
the  Tap  Line  Cases  involving  the  status  of  short  logging 
roads,^-  the  Commission  modified  its  original  report 
in  conformity  with  the  i3rinciples  of  that  case.^^     The 

11.  29  I.  C.  C.  212.  13.    Second  Industrial  Railways 

12,  See  Section  87,  supra.  Case,   34   I.-  C.   C.   596;    Industrial 


§  89]  Carriers  Under  Commerce  Act.  205 

trunk  Jiiics  were  llicii  pcniiitted  to  anaiige  with  the 
industrial  railroads  wliicli  were  common  carriers  under 
the  test  applied  by  tlie  Supreme  Court  in  the  Tap  Line 
Cases,  and  which  performed  a  service  of  transportation, 
for  a  reasonable  com))ensation  for  such  service  in  the 
form  of  switching  charges  or  a  division  of  tlic  joint 
thi-ough  I'ates/* 

§  89.  All  Carriers  in  Territories,  District  of 
Columbia  and  Alaska  Included.  Tlie  statute  prescribes 
that  all  coiiiinou  carriors  of  jjersons  or  property  by  rail, 
and  by  water  and  lail  when  used  under  a  common 
management,  from  one  state  or  territory  or  the  District 
of  Columbia  to  any  other  state,  territory  or  District 
of  Columbia,  or  from  one  place  to  another  in  the  same 
territory,  shall  be  amenable  to  all  its  provisions.  The 
constitutional  limitation  upon  the  power  of  Congress 
over  the  states  is  not  ai)pli('able  to  territories  and  the 
District  of  Columbia,  for  its  jurisdiction  over  them  is 
full  and  coni])lete.^'' 

The  national  constitution  provides  that  the  Con- 
gress shall  have  the  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States.^" 
The  Constitution  also  ijrovides  that  Congress  shall 
have  the  power  to  exercise  legislation  in  all  cases 
whatsoever  over  such  district  (not  exceeding  ten  miles 
S(iuare)   as  may,  by   cession   of  particular   states,   and 

Railways  Case,  32  I.  C.  C.  129.  Soe  Industrial  Railways  Case,  32  I.  C. 

also     Manufacturers    Ry.     Co.     v.  C.    129;    In    re   Joint   Rates    with 

United  States,  U.  S.  ,  62  Birmingham  S.  R.  Co.,  32  I.  C.  C. 

L.   Ed.  ,  38  Sup.  Ct.   383,  de-  110;     Manufacturers'    Ry.    Co.    v. 

cic'ed  April  15,  1918.  St.  Louis,   I.   M.  &   S.   Ry.   Co.,  32 

14.    See    also    Adams    Stave    Co.  I.  C.  C.  100. 

V.  Texas,  0.  &  E.  R.  Co.,  38  I.  C.  C.  15.    El   Paso  &  N.   E.   R.   Co.  v. 

203;    Mitchell  Coal  &  Coke  Co.  v.  Gutierrez,  215  U.  S.  87,  54  L.  Ed. 

Pennsylvania   R.  Co.,   38   I.   C.   C.  106,  30  Sup.  Ct.  21;  Late  Corpora- 

40;      Chicago     West     Pullman     v.  tion  of  Church  of  Jesus  Christ  of 

Southern   R.  Co.,  37  I.  C.  C.  408;  Latter-Day  Saints  v.  United  States. 

East  Jersey  R.  &  T.  Co.  v.  Central  136  U.  S.  1,  34  L.  Ed.  478,  10  Sup. 

R.  of  New  Jersey.  36  I.  C.  C.  146;  Ct.  792. 

Tap    Line   Case,    35   I.   C.   C.    485;  IC.    Article  4.  Section  3. 


206  Duties  to  Interstate  Shippees.  [^  89 

the  acceptance  of  Congress,  become  the  seat  of  govern- 
ment.'' The  District  of  Columbia  was  acquired  by  the 
national  Government  pursuant  to  the  authority  given 
in  this  constitutional  provision  from  the  states  of  Vir- 
ginia and  Maryland  in  1789.  The  jurisdiction  of  Con- 
gress over  the  District  of  Columbia  is  exclusive. ^^ 

The  Interstate  Commerce  Commission  held  that 
Alaska  was  not  a  territory  within  the  meaning  of  the 
Interstate  Commerce  Act  and  that,  therefore,  it  had 
no  jurisdiction  of  the  complaint  of  a  steamship  company 
against  a  railroad  operated  in  Alaska."  But  on  writ 
of  error  to  the  United  States  Supreme  Court  from  the 
Court  of  Appeals  of  the  District  of  Columbia,  it  was 
held  that  Alaska  was  a  territory  within  the  meaning 
of  the  statute  and  that  the  authority  of  the  Secretary 
of  Interior  to  revise  and  modify  railway  rates  in  Alaska 
under  a  former  statute,  was  repealed  by  the  Interstate 
Commerce  Act.-°  Prior  to  the  amendment  of  1906  to 
the  Interstate  Commerce  Act,  the  Commission  had  no 
jurisdiction  to  regulate  rates  on  shipments  between 
points  wholly  within  a  territory." 

§  90.  When  Railroads  Wholly  Within  Limits  of 
Single  State  are  Under  Federal  Control — Former  and 
Present  Rule.  Prior  to  the  Hepburn  Amendment  of 
1906  a  common  carrier  by  rail  whose  lines  were  confined 
within  the  limits  of  a  single  state,  was  not  subject  to 
the  provisions  of  the  Act  to  Regulate  Commerce  or  the 
control  of  the  Interstate  Commerce  Commission  unless 
it  entered  into  a  common  arrangement,  management  or 
control  with  another  carrier  by  rail  for  a  continuous 
carriage  or  shipment  from  one  state  to  another;  for  the 

17.  Article  1,  Section  8.  mission   v.   United    States   ex   rel. 

18.  Howard  v.  Illinois  Cent.  R.  Humboldt  S.  S.  Co.,  224  U.  S.  474, 
Co.,  207  U.  S.  463,  52  L.  Ed.  297,  56  L.  Ed.  849,  32  Sup.  Ct.  556. 
28  Sup.  Ct.  141;  Cohens  v.  Vir-  See  also  Humboldt  Steamship  Co. 
ginia,  6  Wheat  (l).  S.,  2G4,  5  L.  v  White  Pass  &  Yukon  Route,  25 
Ed.   257.  I    C.  C.  136. 

19.  In  re  Jurisdiction  in  Alaska,  21.  Ft.  Smith  &  W.  R.  Co.  v. 
10  I.  C.  C.  81.  Chandler  Cotton  Oil  Co.,  25  Okla. 

20.  Interstate    Commerce    Com-  82,  106  Pac.  10. 


§  I'OJ  (.'AiuaEKs  Under  Commercp:  Act.  207 

courts  generally  held  that  the  phrase  ''under  a  common 
control,  management,  or  arrangement,"  ar)])lied  to  rail 
carriers  whose  lines  were  wlioily  within  a  single  state 
as  well  as  to  water  carriers.  Such  railroads,  therefore, 
wei-e  imninne  from  federal  control  and  did  not  l)ecome 
subject  to  the  statute  unless  they  voluntarily  entered 
into  some  common  arrangement,  control  or  management 
for  the  continuous  shipment  of  goods  or  carriage  of 
passengers  in  interstate  or  foreign  commerce." 

But  as  changed  by  the  Hepburn  Amendment  of 
1906,  the  provisions  of  the  Act  now  apply  to  "any  com- 
mon carrier  or  carriers  engaged  in  the  transportation 
of  passengers  or  property  wholly  by  railroad  (or  partly 
by  railroad  and  partly  by  water  when  both  are  used 
under  a  connnon  control,  management  or  arrangement 
for  a  continuous  carriage  or  shipment)  from  one  state," 
etc.  By  the  insertion  of  the  parenthesis  in  the  passage 
of  the  Hepburn  Act,  the  phrase  "common  control, 
management  or  arrangement"  was  eliminated  as  to 
carriers  by  rail,  and  it  now  applies  only  to  trans] )orta- 
tion  partly  by  railroad  and  partly  by  water.  As  the 
statute  now  reads,  the  test  of  federal  control  and  juris- 
diction over  railroads  wholly  within  a  single  state  is 
not  the  common  arrangement  which  such  railroads  may 
make  with  other  carriers  for  interstate  transportation, 
but  their  subjection  to  federal  control  is  determined 
by  the  character  of  the  ti'ansportation  itself. 

If  such  carriers  accept  freight  for  shipment  to 
another   state,   they  thereby   become  engaged   in   inter- 

22.    Louisville    &    N.    R.    Co.    v.  Seaboard    Ry.    Co.,    82    Fed.    5fi3; 

Behlmer,  i75  U.  S.  648,  44  L.  Ed.  United    States    ex    rel.    Interstate 

309,   20   Sup.   Ct.   209;    Cincinnati.  Commerce  Commission  v.  Chicago 

N.  O.  &  T.  P.  R.  Co.  V.  Interstate  k.  &  S.  R.  Co.,  81  Fed.  783:  Inter- 


Commerce  Commission,  162  U.  S 
184,  40  L.  Ed.  935,  16  Sup.  Ct.  700; 
United  States  v.  Pennsylvania  R. 


state     Commerce    Commission     v. 
Beilaire,  Z.  &  C.  Ry.  Co.,  77  Fed. 


Co.,   153   Fed.   625;    United    States  ^^^-    '^^^^^    ^-    ^'"'^^^i    States,    52 

V.  Geddes.  65  C.  C.  A.  320,  131  Fed.  ^^'^-  ^'^'^'  -hicago  &  N.  W.  Ry.  Co. 

452:  Interstate  Stock-Yards  Co.  v.  "^^  Osborne.  3  C.  C.  A.  347,  52  Fed. 

Indianapolis  ITnion  Ry.  Co..  99  Fed.  912:      Railroad      Commission      of 

472;    United    States   ex   rel.   Inter-  Georgia    v.    Clyde    Steamship    Co., 

state    Commerce    Commission     v.  4  I.  C.  R.  120,  5  I.  C.  C,  324. 


208 


Duties  to  Interstate  Shippers. 


[§  90 


state  commerce  within  the  purview  of  the  statute,  for 
the  movement  of  freight  from  the  be^'inning  of  trans- 
portation to  the  end  must  be  treated  as  an  entirety. 
Interstate  transportation  commences  with  the  delivery 
to  the  carrier  at  point  of  shipment  and  ends  with  de- 
liverv   by   tlie  carrier   at   point   of   destination.^^     The 


23.  Baer  Bros.  Mercantile  Co.  v. 
Denver  &  R.  G.  R.  Co.,  233  U.  S. 
479,  58  L.  Ed.  1055,  34  Sup.  Ct.  641; 
Railroad  Commission  of  Louisiana 
V.  Texas  &  P.  R.  Co.,  229  U.  S. 
336,  57  L.  Ed.  1215,  33  Sup.  Ct.  837; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Hard- 
wick  Farmers'  Elevator  Co.,  236 
U.  S.  426.  57  L.  Ed.  284.  33  Sup.  Ct. 
174,  46  L.  R.  A.  (N.  S.)  203; 
United  States  v.  Union  Stock  Yard 
&  Transit  Co.  of  Chicago,  226  U. 
S.  286,  57  L.  Ed.  226,  33  Sup.  Ct. 
83;  Railroad  Commission  of  Ohio 
V.  Worthington,  225  U.  S.  101,  56 
L.  Ed.  1094,  32  Sup.  Ct.  653;  Mc- 
Neill V.  Southern  R.  Co.,  202  U.  S. 
543,  50  L.  Ed.  1142,  26  Sup.  Ct. 
722;  United  States  v.  Colorado  & 
N.  W.  R.  Co.,  85  C.  C.  A.  27,  157 
Fed.  321,  15  L.  R.  A.  (N.  S.)  107, 
13  Ann.  Cas.  893.  United  States 
V.  Standard  Oil  Co.  of  Indiana, 
155  Fed.  305.  The  change  made 
by  the  Hepburn  amendment  as  to 
railroads  wholly  within  a  single 
state,  is  well  and  accurately  stated 
by  Commissioner  Prouty  in  Leon- 
ard V.  Kansas  City  Southern  Ry. 
Co.,  13  I.  C.  C.  573,  as  follows: 
"When  it  transpired  upon  that 
hearing  that  the  real  question  was 
to  concern  the  future  and  not  the 
past,  the  complainant  asked  to 
amend  its  complaint  so  as  to  pray 
for  the  establishment  of  a  joint 
through  rate  over  the  lines  of  the 
Kansas  City  Southern  and  the 
Belt  "Railway  upon  coal  from  points 
without  the  State  of  Missouri  to 
Westport.     The  complaint  was  so 


amended  and  the  case  has  pro- 
ceeded as  though  such  had  been 
the  original  complaint.  Has  this 
Commission,  then,  jurisdiction  to 
establish  over  the  Belt  Railway 
such  a  joint  rate?  Has  it  juris- 
diction with  respect  to  this  coal 
traffic  to  determine  either  the  en- 
tire through  rate  or  the  rates 
which  shall  be  severally  applied 
by  the  Kansas  City  Southern  up- 
to  Dodson  and  by  the  Belt  Railway 
from  Dodson?  These  questions, 
in  our  opinion,  must  be  answered 
in  the  affirmative.  Interstate 
transportation  is  interstate  com- 
merce. That  transportation  be- 
gins when  property  is  delivered 
to  a  railroad  in  one  state  for  con- 
tinuous shipment  to  a  point  in  an- 
other state,  and  it  continues  until 
delivery  at  the  point  of  destina- 
tion. Every  railroad  participating 
in  that  transportation  is  subject 
to  the  provisions  of  the  act  to  regu- 
late commerce.  At  the  outset  of 
this  discussion  the  difference  be- 
tween the  jurisdiction  of  the  orig- 
inal act  to  regulate  commerce  and 
that  of  the  so-called  Hepburn 
amendment  of  June  29,  1906, 
should  be  carefully  noted.  By  its 
terms  the  provisions  of  the  origin- 
al act  applied  to  'any  common 
carrier  or  carriers  engaged  in  the 
transportation  of  passengers  or 
property  wholly  by  railroad,  or 
partly  by  railroad  and  partly  by 
water  when  both  are  used,  under  a 
common  control,  management,  or 
arrangment  for  a  continuous  car- 


§  '.H). 


Cakhikhs  ILndkr  Commekch  Act. 


209 


interstate  character  of  the  freig'ht  ('oniniciices  willi  Ihc 
Olio  and  coiifhides  \\\\h  the  other. 


riage  or  shipiiifiit.'  The  coiiiniis- 
slon  held  that  the  words  'under 
a  common  control,  management,  or 
arangement'  applied  only  to  cases 
where  the  shipment  was  partly  by 
water  and  partly  by  railroad;  but 
the  decisions  and  intimations  of 
the  Federal  courts,  including  the 
Supreme  Court  of  the  United 
States,  were  generally  to  the  ef- 
fect that  these  words  applied  to  a 
route  composed  wholly  of  rail- 
roads as  well  as  to  one  which  was 
partly  by  railroad  and  partly  by 
water.  Interstate  Commerce  Com- 
mission V.  C.  N.  0.  &  T.  P.  Ry.  Co.. 
162  U.  S.  184,  40  L.  Ed.  935,  5 
Inters.  Com.  Rep.  391,  16  Sup.  Ct. 
Rep.  700;  Parsons  v.  C.  &  N.  W. 
Ry.  Co.,  167  U.  S.  447,  42  L.  Ed. 
231,  17  Sup.  Ct.  Rep.  887;  Louis- 
ville &  Nashville  R.  R.  Co.  v. 
Behlmer,  175  U.  S.  648,  44  L.  Ed. 
309,  20  Sup.  Ct.  Rep.  209;  Chicago 
&  Northwestern  Ry.  Co.  v.  Osborne, 
4  Inters.  Com.  Rep.  257,  3  C.  C.  A., 
347.  10  U.  S.  App.  430,  52  Fed.  912; 
Tozer  v.  U.  S.  4  Inters.  Com.  Rep. 
245,  52  Fed.  917.  The  significance 
of  this  holding  is  obvious.  The 
railroad  located  wholly  within  a 
state  does  not  transport  passen- 
gers upon  its  own  line  from  a 
point  in  one  state  to  a  point  in 
another  state.  It  was  not,  there- 
fore, subject  to  the  provisions  of 
the  act  to  regulate  commerce  un- 
less, by  common  ownership  or  con- 
trol, or  by  some  arrangement,  it 
became  part  of  a  line  which  did 
handle  traffic  between  the  states. 
Whether  a  state  railroad  was  sub- 
ject to  the  act  depended  upon 
■whether  it  had  entered  into  such 
arrangements  with  other  railroads, 
and  since  the  making  of  the  ar- 
rangement   was    a    voluntary    act 


upon  the  part  of  the  state  rail- 
road, that  railroad  could  exercise 
its  election  to  be  or  not  to  be  sub- 
ject to  Federal  jurisdiction.  Other- 
wise stated,  the  jurisdiction  of  this 
Commission  was  not  determined  by 
the  character  of  the  transportation 
in  which  the  state  railroad  en- 
gaged, but  by  the  nature  of  the 
arrangement  under  which  that 
business  was  handled.  As  changed 
by  the  Hepburn  amendment,  the 
provisions  of  the  act  now  api)ly  to 
'any  common  carrier  or  carriers 
engaged  in  the  transportation  of 
passengers  or  property  wholly  by 
railroad  (or  partly  by  railroad  and 
partly  by  water  when  both  are 
used  under  a  common  control, 
management,  or  arrangement  for 
a  continuous  carriage  or  ship- 
ment) from  one  state  or  territory 
of  the  United  States,'  etc.  The 
words  'common  control,  manage- 
ment or  arrangement,'  now  plain- 
ly apply  only  to  transportation 
which  is  partly  by  railroad 
and  partly  by  water.  With  re- 
spect, therefore,  to  transportation 
entirely  by  rail  the  words  in  pa- 
renthesis may  be  eliminated  from 
the  statute.  The  terms  of  the  act 
now  apply  to  'any  common  carri3r 
or  carriers  engaged  in  the  trans- 
portation of  passengers  or  prop- 
erty wholly  by  railroad  from  one 
state  or  territory  in  the  United 
States  or  the  District  of  Columbia 
to  any  other  state  or  territory  of 
the  United  States  or  the  District  of 
Columbia.'  Under  the  present  act 
the  test  of  jurisdiction  is  not  the 
arrangement  under  which  the 
freight  is  handled,  but  rather  the 
character  of  the  transportation  it- 
self. The  plain  language  of  the 
act  subjects  any  carrier  which  en- 


1    (^oiitml   Cirrlrrs   It 


210  Duties  to  Interstate  Shippers.  [§  90 

Any  carrier  that  assists  to  any  extent  in  the  move- 
ment of  such  a  commodity  is  subject  to  the  Act,  whether 
that  service  is  performed  wholly  in  one  city  or  in  one 
state  or  in  more  than  one  state,  and  whether  the  service 
is  carriage  or  switching.  A  carrier,  therefore,  with 
a  line  confined  wholly  within  a  single  state  is  subject 
to  the  Act,  if  it  accepts  any  shipments  intended  for 
continnons  passage  to  any  point  in  another  state  or 
foreign  country. 

§  91.  Carriers  Engaged  in  Transportation  Between 
Points  in  United  States  and  Adjacent  Foreign  Countries. 

Section  ]  provides  that  transportation  of  persons  or 
property  wholly  by  rail,  or  partly  by  rail  and  partly  by 
water  under  a  common  arrangement,  management  or 
control,  from  any  place  in  the  United  States  to  any  ad- 
jacent foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  country  to  any  other  place 
in  the  United  States,  shall  be  subject  to  all  the  provi- 
sions of  the  statute.  Thus,  in  an  early  case  before  the 
Commission,  it  appeared  that  the  Grand  Trunk  Railway 
Company  of  Canada  had  published  and  filed  a  rate  of 
one  dollar  per  ton  on  coal,  coke,  etc.,  from  Buffalo  and 
other  cities  in  the  United  States  to  certain  points  in 
Canada,  but  quoted  a  special  rate  of  seventy-five  cents 
per  ton,  and  the  traffic  was  carried  at  such  a  rate.^* 
The  company  urged  that  its  Canadian  line  and  the 
traffic  carried  by  it  from  points  in  the  United  States  to 
]toints  in  Canada  were  not  under  the  jurisdiction  of  the 

gages  in  the  movement  of  freight  only  subject  to  the  act  to  regulate 

by  rail  from  a  point  in  one  state  commerce  when   performed   under 

to  a  point  in  another  state  to  its  some    arrangement    which    makes 

provisions.     This  must  be  so  un-  the  carrier  part  of  a  through  line 

less  that  portion  of  the  transpor-  over  which  the  traffic  moves?  Both 

tation    conducted    entirely    within  upon    authority   and    upon    princi- 

a  state  is  not  to  be  regarded  as  a  pie  the  movement  must  be  treated 

part  of  the  entire  through  move-  as  an  entirety,  every  part  of  which 

ment.      The  question  really  is,  Is  is  subject  to  federal  contiol." 
the  movement  from  beginning  to  24.    In  the  Matter  of  the  Investi- 

end    to    be    treated    as    one    en-  gation  of  the  Rates  of  the  Grand 

tirety,  or  can  it  be  split  up  into  Trunk  Ry.  Co.  of  Canada,  2  I.  C. 

separate     movements     which     are  R.  496. 


§  92]  Carriers  Under  Commerce  Act.  211 

Interstate  Commerce  Commission,  l)nt  the  Commission 
held  tliat  the  carrier  was  amenable  to  the  statute  as 
to  such  transportation  and  had  violated  lli<'  provisions 
of  the  Act. 

The  Interstate  Commerce  Act  does  not,  however, 
apply  to  transportation  carried  entirely  within  the 
boundaries  of  a  foreign  country.  For  example,  the 
Commission  has  no  authority  to  regulate  the  rates  for 
transportation  between  points  wholly  in  Canada;'-^  nor 
has  the  Commission  any  jurisdiction  over  transporta- 
tion wholly  wuthin  the  country  of  Mexico.'-"  But  w^hen 
a  foreign  carrier  conies  'n\U>  the  United  States  to  com- 
pete for  traffic,  it  should  be  content  to  operate  ui)on  tiie 
same  terms  as  its  American  competitors.-^ 

§  92.  Carriers  by  Water  Included  as  to  Continuous 
Shipments  Under  Common  Arrangements  with  Carriers 
by  Rail.  Among  the  common  carriers  subject  to  the 
provisions  of  the  Interstate  Commerce  Act  are  carriers 
engaged  in  the  transportation  of  persons  or  property 
partly  by  railroad  and  partly  by  water  when  both  are 
used  under  a  common  control,  management,  or  arrange- 
ment for  a  continuous  carriage  or  shipment  from  one 
state  or  territory  to  another  state  or  territory.  Car- 
riers wholly  by  water  are  therefore  exem])t  fiom  the 
provisions  of  the  Act.-* 

25.  FuHerton  Lumber  &  Shingle  and  Egg  Rates,  29  I.  C.  C.  45; 
Co.  V.  Bellingham  B.  &  B.  C.  R  Arkansas  Pass  Channel  &  Dock  Co. 
Co.,  25  I.  C.  C.  375;  Humboldt  v.  Galveston,  H.  &  S.  A.  Ry.  Co., 
Steamship  Co.  v.  White  Pass  &  Y.  27  I.  C.  C.  403;  Augusta  &  Savan- 
Ry.  Co.,  25  I.  C.  C.  136.  nah  Steamboat  Co.  v.  Ocean  Steam- 

26.  Eagle  Pass  Lumber  Co.  v.  ship  Co.  of  Savannah,  26  L  C.  C. 
National  Rys.  of  Mexico,  25  L  C.  380;  Galveston  Commercial  Associ- 
C.  5.  ation  v.  Atchison,  T.  &  S.  F.  Ry. 

27.  In  the  Matter  of  Disturb-  Co.,  25  I.  C.  C.  216;  Escanaba  Busi- 
ance  in  Passenger  Rates  by  Cana-  ness  Men's  Association  v.  Ann 
dian  P.  R.  Co.,  8  I.  C.  R.  71.  Arbor,  R.  Co.,  24   I.  C.  C.   11;    In 

28.  Interstate  Commerce  Com-  the  Matter  of  Transportation  by 
mission  v.  Goodrich  Transit  Co.,  the  Chesapeake  &  O.  Ry.  Co.,  21  I. 
224  U.  S.  194.  56  L.  Ed.  729,  32  C.  C.  207;  In  the  Matter  of  Juris- 
Sup.  Ct.  436:  Ex  Parte  Koehler,  30  diction  over  Water  Carriers,  15  I. 
Fed.     867;     Lake-and-Rail     Butter  C.  C.  205;    Ullman  v.  Adams  Exp. 


212  Duties  to  Interstate  Shippers.  [§  92 

The  primary  purpose  of  CongTess  in  the  passage 
of  the  statute  was  to  regulate  transportation  by  rail- 
road. The  control  of  carriers  by  water  was  merely 
incidental  and  collateral,  and  they  were  included  so  that 
the  regulation  of  carriers  by  rail  might  be  effective 
and  not  be  destroyed  by  subterfuges  and  contracts 
entered  into  with  water  lines.^^  When  water  carriers 
become  amenable  to  the  requirements  of  the  statute 
and  the  jurisdiction  of  the  Interstate  Commerce  Com- 
mission, they  do  so  by  choice  in  entering  into  a  common 
arrangement  or  control  with  railroad s.^° 

But  even  when  water  carriers  enter  into  or  adopt 
a  common  management,  arrangement  or  control  with 
carriers  by  rail  for  continuous  transportation,  the 
jurisdiction  of  the  Interstate  Commerce  Commission 
only  extends  to  the  traffic  so  carried  under  a  common 
control.  As  to  traffic  by  water  not  transported  under 
such  a  common  control,  management,  or  arrangement, 
the  federal  statute  does  not  control  and  the  Commission 
has  no  power  to  regulate  it.  The  jurisdiction  of  the 
Interstate  Commerce  Commission  as  to  both  carriers  by 
water  and  traffic  carried  by  them,  is  confined  strictly 
to  those  water  carriers  and  traffic  carried  in  a  continuous 
shipment  and  under  a  common  control  and  management 
with  carriers  hj  rail.^^     For  example,  the  Commission 

Co.,  14  I.  C.  C.  340;   Cosmopolitan  Butter  &  Egg  Rates,  29  I.  C.  C.  45; 

Shipping   Co.   v.   Hamburg-Ameri-  Augusta    &    Savannah    Steamboat 

can  Packet  Co.,  13  I.  C.  C.  266.  Co.    v.    Ocean    Steamship    Co.    of 

29.  In  the  Matter  of  Jurisdiction  Savannah,  26  I.  C.  C.  380;  Ullman 
over  Water  Carriers,  15  I.  C.  C.  205.  v  Adams  Exp.  Co.,  14  I.  C.  C.  340; 

30.  Wilmington  Transp.  Co.  v.  Lykes  Steamship  Line  v.  Commer- 
Railroad  Commission  of  California,  cial  Union  et  al,  13  I.  C.  C.  310. 
236  U.  S.  151,  59  L.  Ed.  508,  35  31.  In  the  Matter  of  Jurisdiction 
Sup.  Ct.  270;  Interstate  Commis-  over  Water  Carriers,  15  I.  C.  C. 
sion  v.  Goodrich  Transit  Co.,  224  205,  in  which  the  Commission 
U.  S.  194,  56  L.  Ed.  729,  32  Sup.  said:  "As  a  fundamental  propo- 
Ct.  436;  Mutual  Transit  Co.  v.  sition  it  is  obvious  that  interstate 
United  States,  102  C.  C.  A.  164,  commerce  wholly  by  railroad  is 
178  Fed.  664;  Camden  Iron  Works  subject  to  the  Act  and  that  in- 
V.  United  States,  85  C.  C.  A.  585,  terstate  commerce  wholly  by  water 
158  Fed.  561;  United  States  v.  is  not  subject  to  the  Act.  It  is 
Wood,  145  Fed.  405;  Lake-and-Rail  equally     obvious     that     interstate 


§  92] 


Careiers  Under  Commerce  Act. 


21; 


has  the  power  to  com])ol  eonimoTi  carriers  by  water, 
carrying  passengers  and  properly  in  interstate  commerce 
under  joint  tariffs  willi  laihoad  companies,  to  adoi)t 
certain  methods  of  accounts  and  bookkeeping  as  to 
operating  expenses  and  revenues,  and  to  rejjort  con- 
cerning their  corporate  organization,  liiiaiicial  c()n(liti()n, 
etc.,  to  the  Commission. ^^  In  a  comi)laint  against  ocean 
carriers  between  xVmerican  and  Euroi)ean  i)orts,  it  was 
alleged  that  the  defendants  carried  traffic  on  through 
bills  of  lading  between  points  in  the  United  States  and 
European  ports  under  a  pooling  agreement  by  which 
the  traffic  was  divided  by  agreement  and  each  carrier 
received  a  certain  per  cent,  thus  destroying  competi- 
tion. The  Commission  sustained  a  demurrer  to  the 
complaint  because  it  had  no  jurisdiction  as  to  the  ocean 
carriage.^^     Ocean  rates  are  not  witliin  the  jurisdiction 


commerce  partly  by  railroad  and 
partly  by  water,  under  a  common 
control,  management,  or  arrange- 
ment for  a  continuous  carriage  or 
shipment,  is  subject  to  the  Act. 
Does  the  fact  that  some  of  the 
commerce  transported  by  a  car- 
rier is  subject  to  the  Act  ipso  facto 
render  all  the  commerce  transport- 
ed by  that  carrier  subject  to  the 
Act?  *  *  *  Traffic  wholly  with- 
in a  state  is  not  subject  to  the  Act, 
for  the  reason  that  Congress  has 
no  authority  to  regulate  such  traf- 
fic. Traffic  wholly  by  water  is  not 
subject  to  the  Act,  for  the  reason 
that  Congress  did  not  in  that 
statute  exercise  its  admitted  au- 
thority over  interstate  transporta- 
tion by  water.  The  Commission's 
only  duty  is  to  execute  the  man- 
date of  Congress.  The  language 
of  the  provision  in  question  indi- 
cates its  meaning.  The  Act  ap- 
plies to  any  common  carrier  or 
carriers  engaged  in  transportation 
partly  by  rail  and  partly  by  water 
when  both  are  used  under  a  com- 
mon control,  management,  or  ar- 


rangement for  a  continuous  car- 
riage or  shipment.  The  use  of  the 
word  'when'  is  significant,  and  its 
natural  meaning  seems  to  be  that 
a  water  carrier  is  subject  to  the 
act  'in  so  far  as'  or  'to  such  extent 
as'  it  carriers  traffic  under  a  com- 
mon control,  management,  or  ar- 
rangement with  a  railroad.  It  need 
hardly  be  stated  that  the  Act  does 
not  require  publication  of  or  ad- 
herence to  rates  upon  purely  in- 
trastate traffic.  With  regard,  then, 
to  the  history  and  purpose  of  the 
enactment,  the  language  used  and 
the  rules  of  statutory  construction 
which  have  been  mentioned,  it  is 
difficult  to  see  how  serious  doubt 
can  arise  that  Congress  did  not 
intend  to  regulate  the  charges  ex- 
acted upon  the  port-to-port  busi- 
ness of  water  carriers." 

.32.  Interstate  Commerce  Com- 
mission V.  Goodrich  Transit  Co.. 
224  U.  S.  194,  .50  L.  Ed.  729,  32 
Sup.   Ct.  430. 

33.  Cosmopolitan  Shipping  Co. 
V.  Hamburg- American  Packet  Co.. 
13  I.  C.  C.  266. 


214  Duties  to  Interstate  Shippers.  [§92 

of  the  Commission  and  in  dealing  with  import  and  ex- 
port rates,  the  ports  are  considered  as  destinations  and 
not  gate\Yays.^* 

§  93.  Independent  Ferry  Companies  Included  as 
to  Shipments  Under  Common  Arrangement  with  Rail 
Carriers.  A  ferry  has  been  defined  to  be  a  continuation 
of  a  highway  from  one  side  of  the  water  over  which  it 
passes  to  the  other,  and  is  for  transportation  of  pas- 
sengers or  of  travelers  with  their  teams  and  vehicles 
and  such  other  property  as  they  may  carry  or  have  with 
them.^^^ 

The  Interstate  Commerce  Act  provides  that  the 
term  "railroad"  shall  include  all  ferries  used  or  oper- 
ated in  connection  with  any  railroad.  However,  the 
ferries  contemplated  by  this  definition  are  those  con- 
trolled by  a  rail  carrier  as  a  part  of  its  line  and  as  owner, 
lessee  or  licensee. ^^  Independent  ferry  companies  are 
water  carriers.  They  are  not,  therefore,  subject  to  the 
jurisdiction  of  the  Interstate  Commerce  Commission 
under  the  statute  unless  they  are  engaged  in  the  trans- 
portation of  persons  or  property  under  a  common  con- 
trol, arrangement  or  management  for  a  continuous  ship- 
ment with  a  carrier  by  rail."  As  to  traffic  not  so  trans- 
ported under  a  common  arrangement,  ferry  companies 
are  not  subject  to  the  provisions  of  the  statute.^* 

Since  Congress  has  assumed  jurisdiction  over  ferries 
used  by  railroad  companies,  the  states  have  no  power  to 
fix  rates  of  ferriage  over  streams  which  constitute  the 

34.  Chamber  of  Commerce  of  2  L.  R.  A.  289;  Enterprise  Transp. 
State  of  New  York  v.  New  York  Co.  v.  Pennsylvania  R.  Co.,  12  I. 
Cent.  &  H.  River  R.  Co.,  24  I.  C.       c.  C.  326. 

C.  55. 

35.  St.  Clair  County  v.  Inter- 
state Sand  &  Car  Transfer  Co.,  192 
U.  S.  454,  48  L.  Ed.  518,  24  Sup.  Ct. 
300. 

36.  In  re  Grain  from  Milwaukee,  i"  exercising  its  powers  under  the 
Wisconsin   33  I.  C.  C.  417.  Panama  Canal  Act  without  regard 

37.  Kentucky  &  I.  Bridge  Co.  v.  to  the  question  of  common  owner- 
Louisville  &  N.  R.  Co.,  37  Fed.  567,      ship  or  arrangements. 


38.  In  the  Matter  of  Jurisdiction 
over  Water  Carriers,  15  I.  C.  C. 
205.  They  are,  however,  subject  to 
the  jurisdiction  of  the  Commission 


§    <)."5J  CaKRIEHS    rXDKH   COMMERCE   AcT.  215 

l)()uiidary  betweon  two  .states,  and  this  is  true,  it  lias 
been  held,  even  as  to  passengers  on  such  ferries  other 
than  railroad  passengers.^"  But  in  the  absence  of  legis- 
lation by  Congress  it  has  been  held  that  a  state  has  tlie 
l)ower  to  fix  reasonable  rates  for  ferriage  over  a  stream 
which  is  the  boundary  between  two  states  when  such 
ferries  are  not  operated  in  connection  with  any  railroad. 
The  right  of  the  state  in  sucli  cases  is  limited  to  the 
regulation  of  rates  from  its  o\\^  shores  to  the  shores 
of  another  state,  that  is,  each  state  may  fix  Ihf  rates 
for  outbound  .I'ourneys  only.^°  The  court,  in  the  case 
last  cited,  held  that  the  regulation  of  rates  as  to  such 
ferries,  was  not  a  subject  matter  which  required  a  gen- 
eral system  of  control  or  uniformity  of  regulation,  and, 
therefore,  the  power  of  Congress  was  not  exclusive, 
but  that  the  subject  matter  was  essentially  a  local  one 
r(M|uiring  regulation  according  to  local  conditions. 

On  the  other  hand,  neither  a  state  nor  a  municipali- 
ty, even  in  the  absence  of  legislation  by  Congress,  has 
the  jiower  to  com]iel  ferry  companies  operating  boats 
between  two  states  or  between  the  United  States  and 
Canada  to  obtain  a  license  before  engaging  in  the  busi- 
ness of  operating  a  ferry  boat.  For  example,  an  ordi- 
nance of  the  City  of  Sault  Ste.  Marie,  Michigan,  re- 
(]uiring  all  operators  of  ferry  boats  between  that  city 
and  the  Ontario  shore  across  St.  Mary's  River  in  Canada 
to  pay  a  license  fee,  was  held  to  be  invalid  for  the 
reason  that  it  was  a  tax  assessed  by  the  state  for  tlie 
])rivilege  of  carrying  on  foreign  commerce  which  is 
under  the  exclusive  jurisdiction  of  Congress.*^ 

Both  of  these  decisions,  one  denying  the  power  of 
the  state  to  exact  a  license  for  carrying  on  the  Inisiness 
of  interstate  or  foreign  ferriage,  and  the  other  affirming 

39.  New  York  Cent.  &  H.  River       V.  S.  317,  58  L.  Ed.  1330,  34  Sup. 
R.  Co.  V.  Board  Chosen  Freeholders      Ct.  821. 

County  of  Hudson,  227  U.  S.  248,  41.    City  of  Sault   Ste.  Marie  v. 

57  L.  Ed.  499,  33  Sup.  Ct.  269.  International  Transit  Co.  234  U.  S. 

40.  Port     Richmond     &     B.     P.  3:^3,  58  L.  Ed.  1337.  34  Sup.  Ct.  826, 
Ferry  Co.  v.   Board  Chosen   Free-  52  L.  R.  A.   (N.  S.)   574. 
holders    County    of    Hudson,    234 


216  Duties  to  Interstate  Shippers.  [§  93 

the  power  of  the  state  to  fix  the  rate  for  such  ferriap^e, 
were  delivered  on  the  same  day.  In  another  case,  the 
federal  Supreme  Court  held  tliat  a  tax  imposed  by  the 
state  of  Pennsylvania  on  a  ferry  company  operating  be- 
tween Gloucester,  New  Jersey  and  the  City  of  Phila- 
delphia for  the  landing  of  passengers  and  freight  at 
the  wharf  in  Philadelphia,  was  a  direct  burden  upon 
interstate  commerce  and,  therefore,  void  as  an  inter- 
ference with  the  pow^r  of  Congress.^-  Similarly,  an 
Illinois  statute  requiring  ferry  companies  operating 
across  the  Missouri  River  from  the  Illinois  shore  to 
the  Missouri  shore  to  take  out  a  license,  was  held  in- 
valid as  to  the  transportation  of  railroad  cars."*^ 

§  94.  Common  Control,  Management,  and  Arrange- 
ment for  Continuous  Transportation,  Defined  and  Ex- 
plained. The  phrase  "common  control,  management,  or 
arrangement  for  a  continuous  carriage  or  shipment"  in 
the  first  section  of  the  Act,  prior  to  the  Hepburn  Amend- 
ment, covered  interstate  and  foreign  traffic  carried 
through  over  all-rail  as  well  as  part  water  and  part 
rail  lines;  but  since  the  amendment  of  1906,  the  phrase 
is  applicable  solely  to  transportation  partly  by  rail  and 
partly  by  water. 

The  meaning  of  the  clause  was  the  source  of  con- 
siderable controversy  in  the  early  litigation  construing 
the  Act  but  there  is  at  the  present  time  an  unanimity 
of  opinion  as  to  its  meaning.  So  long  as  the  rail  and 
water  lines  are  each  operated  under  a  separate  and  dis- 
tinct control,  each  making  its  own  rates  and  billing  for 
the  carriage  and  delivery  of  the  goods  solely  to  the 
end  of  its  own  line,  the  act  does  not  apply  to  water 
carriers;^*  but  the  receipt  successively  by  the  rail  and 
water  carriers  for  transportation  of  traffic  shipped 
under  through  bills  for  continuous  carriage  over  their 

42.  Gloucester  Ferry  Co.  v.  Penn-      U.  S.  454,  48  L.  Ed.  518,  24  Sup.  Ct. 
sylvania,  114  U.  S.  196,  29  L.  Ed.      300. 

158,  5  Sup.  Ct.  826.  44.    Ex   Parte   Koehler,   30   Fed, 

43.  St.    Clair    County    v.    Inter-       867. 
state  Sand  &  Car  Transfer  Co.,  192 


1 


§  94] 


Cakiukiss  Un'dku  C'o.mmkkck  Act 


217 


lines  is  an  assent  to  a  connnon  anan/^^eiiicnt  lor  such 
continuous  transportation.^'  Previous  formal  arrange- 
ments between  the  water  and  the  rail  carrier  is  not  neces- 
sary to  make  such  transportation  under  the  terms  of 
the  law/"  for  whenever  the  water  carrier  enters  into  the 
carriajj-e  of  freight  by  receiving  the  goods  on  througli 
bills  of  lading,  it  becomes  a  })arty  to  a  common  arrange- 
ment under  the  statute.''  While  through  billing  and 
through  rating  arc  the  usual  evidence  of  a  common 
arrangement  under  the  statute,  neither  is  essential  to 
the  establishment  of  a  common  control  or  management.*'* 
When  goods  are  shipped  from  a  point  in  one  state 
to  a  point  in  another  and  are  received  in  transit  by  a 
carrier  under  a  conventional  division  of  the  charges, 
such  a  carrier  must  be  deemed  to  have  subjected  its 
line  to  an  arrangement  for  a  continuous  carriage  within 
the  meaning  of  the  Act.'*''     The   arrangement  need   not 


45.  Railroad  Commission  of 
Georgia  v.  Clyde  Steamship  Co., 
4  I.  C.  C.  120,  5  I.  C.  C.  324,  in 
which  Commissioner  Veazey  said: 
"Traffic  is  either  state  or  inter- 
state according  to  its  origin  and 
destination.  It  is  shipped  by  the 
consignor  in  the  state  where  the 
consignee  dwells,  or  it  is  not.  If 
not,  it  is  interstate  traffic,  and 
when  carried  over  two  or  more 
lines,  it  is,  by  the  fact  of  having 
been  received,  forwarded,  and  de- 
livered as  one  through  shipment, 
transported  under  a  common  con- 
trol, management,  or  airangement, 
as  the  case  may  be,  for  continu- 
ous carriage  or  shipment.  The 
phrase  'common  control,  manage- 
ment, or  arrangement  for  continu- 
ous carriage  or  shipment'  in  the 
first  section  was  intended  to  cover 
all  interstate  traffic  carried 
through  over  all  rail,  or  part 
water  and  part  rail  lines.  The 
'arrangement  for  continous  car- 
riage   or    shipment'    is    complete 


whenever  the  carriers  have  ar- 
ranged for  delivering  and  receiv- 
ing through  traffic  to  and  from 
each  other  and  such  an  arrange- 
ment is  necessarily  'common.' 
This  construction  of  the  words 
'common  arrangement'  as  used  in 
the  first  section  of  the  law  is  in 
line  with  our  decisions  in  Boston 
Fruit  and  Produce  Exchange  v. 
New  York  &  N.  E.  R.  Co.,  3  I.  C.  R. 
493,  4  I.  C.  C.  644  and  Mattingly 
v.  Pennsylvania  Co.,  2  I.  C.  R.  806. 
3  I.  C.  C.  592  and  with  other  rul- 
ings  of   the   Commission." 

46.  Standard  Oil  Co.  of  New 
York  v.  United  States,  103  C.  C.  A. 
172,  179  Fed.  614. 

47.  LouiGville  &  N.  R.  Co.  v. 
Behlmer,  175  U.  S.  648,  44  L.  Ed. 
309,   20   Sup.   Ct.   209. 

48.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  v.  Interstate  Commerce 
Commission,  162  U.  S.  184.  40  L. 
Ed.  935.  16  Sup.  Ct.  700. 

49.  Baer  Brothers  Mercantile 
Co.  v.  Denver  &  R.  G.  R.  Co.,  233 


LAW   LIBRARY 


CF 


LOS  ANGELES  COUNTY 


218 


Duties  to  Interstate  Shippers. 


[§  94 


be  shown  by  a  formal  contract,  but  is  manifest  in  the 
successive  receipt  and  movement  of  the  traffic  by  the 
connecting  carrier  under  a  through  bill  of  lading  for 
continuous  carriage;"'  but  in  order  to  establish  the  com- 
mon arrangement  between  a  carrier  by  water  and  a 
carrier  by  rail,  it  must  be  shown  that  the  water  carrier 
made  the  arrangement  with  the  other  carrier  and  not 
with  the  shipper.  When  a  lake  steamship  company 
and  a  rail  carrier  publishing  proportional  rates,  received 
traffic  under  a  through  bill  of  lading  for  an  interstate 
shipment  and  required  the  prepayment  of  freight 
charges,  a  common  arrangement  between  them  is  shown. ''^ 
While  some  of  the  decisions  cited  in  the  notes  were 
construing  the  meaning  of  the  term  "common  arrange- 
ment" as  to  intrastate  railroads  prior  to  the  1906  amend- 
ment, the  principles  therein  adopted  apply  with  equal 
force  in  determining  the  applicability  of  the  statute  to 
water  carriers.  If  the  water  and  rail  carriers  have  in- 
vited interstate  traffic  over  their  lines  which  is  intended 
to  be  continuous,  have  so  arranged  their  business  that 
the  continuity  of  the  shipment  shall  be  preserved,  and 
have  combined  their  several  lines  for  the  reception, 
carriage  and  delivery  of  interstate  traffic,  such  business 
is  within  the  scope  of  the  statute.^- 

§  95.      Extension    of    Federal    Jurisdiction    Over 
Water  Carriers  by  Panama  Canal  Act  of  1912.     Addi- 


U.  S.  479,  58  L.  Ed.  1055,  34  Sup 
Ct.  641;  United  States  v.  Pennsyl 
vania  R.  Co.  153  Fed.  625;  United 
States  V.  Vacuum  Oil  Co.,  153  Fed 
598;  Interstate  Stock-Yards  Co.  v 
Indianapolis  Union  Ry.  Co.,  99  Fed 
472;  United  States  ex  rel.  Inter 
state  Com.nerce  Commission  v 
Seaboard  Ry.  Co.,  82  Fed.  563 
Augusta  Southern  R.  Co.  v 
Wrightsville  &  T.  R.  Co..  74  Fed 
522. 

50.  Mutual  Transit  Co.  v.  United 
States,  102  C.  C.  A.  164,  178  Fed. 
664;  Goodrich  Transit  Co.  v.  Inter- 


state Commerce  Comir.ission,  190 
Fed.  943;  Chicago,  B.  &  Q.  R.  Co.  v. 
United  States,  85  C.  C.  A.  194,  157 
Fed.  830;  United  States  v.  Stand- 
ard Oil  Co.  of  Indiana,  155  Fed. 
305;  United  States  v.  Camden  Iron 
Works,  150  Fed.  214;  United  States 
V.  Wood,  145  Fed.  405. 

51.  Tone  Brothers  v.  Illinois 
Cent.  R.  Co..  26  I.  C.  C.  279;  Flour 
City  Steamship  Co.  v.  Lehigh  Val- 
ley R.  Co.,  24  I.  C.  C.  179. 

.52.  United  States  v.  Wood,  145 
Fed.  405. 


§  !)5J  Carhikks  Undkr  Commkhck  Act.  219 

tioiial  juriisdiction  over  water  carriers  was  conferred 
iijion  the  Interstate  Commerce  Commission  ))y  the  Pana- 
ma Canal  Act  passed  on  August  24,  1912  as  an  amend- 
ment to  Section  6  of  tlie  Interstate  Commerce  Act. 

This  amendment  i)rovides  that  ''wlien  property 
may  be  or  is  transported  from  ])oint  to  point  in  tlie 
United  States  by  rail  and  water  throuf^li  the  Panama 
Canal  or  otherwise,  the  transportation  being  by  a  com- 
mon carrier  or  carriers,  and  not  entirely  within  the 
limits  of  a  single  State,  the  Interstate  Commerce  Com- 
mission shall  have  jurisdiction  of  such  transportation 
and  of  the  carriers,  both  by  rail  and  by  water,  wliicli 
may  or  do  engage  in  the  same,  in  the  following  particu- 
lars, in  addition  to  the  jurif^diction  given  by  the  Act 
to  regulate  commerce,  as  amended  June  eigliteenth, 
nineteen  hundred  and  ten:  (a)  To  establish  physical 
connection  between  the  lines  of  the  rail  carrier  and  the 
dock  of  the  water  carrier  by  directing  the  rail  carrier 
to  make  suitable  connection  between  its  line  and  a 
track  or  tracks  which  have  been  constructed  from  the 
dock  to  the  limits  of  its  right  of  way,  or  by  directing 
either  or  both  the  rail  and  water  carrier,  individually 
or  in  connection  with  one  another,  to  construct  and 
connect  with  the  lines  of  the  rail  carrier  a  spur  track 
or  tracks  to  the  dock.  This  provision  shall  only  apply 
where  such  connection  is  reasonably  practicable,  can 
be  made  with  safety  to  the  public,  and  where  the  amount 
of  business  to  be  handled  is  sufficient  to  justify  the 
outlay.  The  Commission  shall  have  full  authority  to 
determine  the  terms  and  conditions  u])on  which  these 
connecting  tracks,  when  constructed,  shall  be  operated, 
and  it  may,  either  in  the  construction  or  the  operation 
of  such  tracks,  determine  what  sum  shall  be  paid  to 
or  by  either  carrier.  The  provisions  of  this  paragraph 
shall  extend  to  cases  where  the  dock  is  owned  by  other 
parties  than  the  carrier  involved,  (b)  To  establish 
through  routes  and  maximum  joint  rates  between  and 
over  such  rail  and  water  lines,  and  to  determine  all 
the  terms  and  conditions  under  which  such  lines  shall 
be  operated   in    ilie   liandling  of   the   traffic   embraced. 


220  Duties  to  Interstate  Shippees.  [§  95 

(c)  To  establish  maximum  proportional  rates  by  rail 
to  and  from  the  ports  to  which  tlie  traffic  is  brought, 
or  from  which  it  is  taken  by  the  water  carrier,  and  to 
determine  to  what  traffic  and  in  connection  with  what 
vessels  and  upon  what  terms  and  conditions  such  rates 
shall  apply.  By  proportional  rates  are  meant  those 
which  differ  from  the  corresponding  local  rates  to  and 
from  the  port  and  which  apply  only  to  traffic  which 
has  been  brought  to  the  port  or  is  carried  from  the 
port  by  a  common  carrier  by  water,  (d)  If  any  rail 
carrier  subject  to  the  Act  to  regulate  commerce  enters 
into  arrangements  with  any  water  carrier  operating 
from  a  port  in  the  United  States  to  a  foreign  country, 
through  the  Panama  Canal  or  otherwise,  for  the  hand- 
ling of  through  business  between  interior  points  of  the 
United  States  and  such  foreign  country,  the  Interstate 
Commerce  Commission  may  require  such  railway  to 
enter  into  similar  arrangements  with  any  or  all  other 
lines  of  steamships  operating  from  said  port  to  the 
same  foreign  country.  The  orders  of  the  Interstate 
Commerce  Commission  relating  to  this  section  shall  only 
be  made  upon  formal  complaint  or  in  proceedings  insti- 
tuted by  the  Commission  of  its  own  motion  and  after 
full  hearing.  The  orders  provided  for  in  the  two  amend- 
ments to  the  Act  to  regulate  commerce  enacted  in  this 
section  shall  be  served  in  the  same  manner  and  enforced 
by  the  same  penalties  and  proceedings  as  are  the  orders 
of  the  Commission  made  under  the  provisions  of  sec- 
tion fifteen  of  the  Act  to  regulate  commerce,  as  amend- 
ed June  eighteenth,  nineteen  hundred  and  ten,  and  they 
may  be  conditioned  for  the  payment  of  any  sum  or  the 
giving  of  security  for  the  payment  of  any  sum  or  the 
discharge  of  any  obligation  which  may  be  required 
by  the  terms  of  said  order." 

§  96.  Amendment  Applies  to  Traffic  Between  Two 
Points  in  United  States  Passing  Through  Panama 
Canal  "or  Otherwise."  Tlio  words  "or  otherwise" 
in  that  ])ari  of  tlio  Panama  Canal  Act,  which  is  an 
amendment  of  Section  6,  do  not  modify  the  phrase  "by 


^  OGj 


Carriers  Undkr  Commkrck  Act. 


221 


rail  and  water"  but  the  pliiasc  "1  liiou.uli  tlio  I'anama 
Canal."  Hence  trariic  nioviiii;-  froiii  aii\-  i)()inl  to  an- 
other in  file  United  States  by  rail  and  water  is  subject 
to  the  jirovisions  of  the  l*anama  Canal  Act  and  the 
powers  of  the  Interstate  Coimnission  thereunder,  as  well 
as  traffic  moving  by  rail  and  water  llirough  the  Panama 
Canal,  without  regard  to  aiiN  connnon  arrangement, 
ownership  or  management  between  the  water  and  rail 
linos,  which  ordinarily  limits  the  jurisdiction  of  the 
Commission.  It  follows,  therefore,  that  the  Commission 
is  empowered  under  this  amendment  to  establish  through 
routes  and  maximum  joint  rates  between  a  rail  and 
water  carrier  from  Augusta  and  Savannah,  Georgia, 
thence  by  water  to  North  Atlantic  ports  and  thence 
by  rail  to  interior  destinations  in  the   United  States." 


53.  Augusta  &  Savannah  Steam- 
ship Co.  V.  Ocean  Steamship  Co. 
of  Savannah,  26  I.  C.  C.  380,  in 
which  Commissioner  Prouty  said: 
"But  our  jurisdiction  does  not  rest 
upon  the  above  ground  solely. 
Since  the  filing  of  this  petition  by 
the  Panama  Act,  so  called,  ap- 
proved August  24,  1912,  this  body 
has  been  given  additional  jurisdic- 
tion over  water  carriers.  The 
eleventh  section  of  that  act  amends 
section  6  of  the  Act  to  Regulate 
Commerce  as  follows:  'When  prop- 
erty may  be  cr  is  transported  from 
point  to  point  in  the  United  States 
by  rail  and  water,  through  the 
Panama  Canal  or  otherwise,  the 
transportation  being  by  a  common 
carrier  or  carriers,  and  not  entire- 
ly within  the  limits  of  a  single 
state,  the  Interstate  Commerce 
Commission  shall  have  jurisdiction 
of  such  transportation  and  of  the 
carriers  both  by  rail  and  by  water, 
which  may  or  do  engage  in  the 
same,  in  the  following  particulars, 
in  addition  to  the  jurisdiction 
given  by  the  Act  to  Regulate  Com- 
merce,   as    amended    June    Eigh- 


teenth, Nineteen  Hundred  and 
Ten:  *  *  *  (b)  To  establish 
through  routes  and  maximum  joint 
rates  between  and  over  such  rail 
and  water  lines,  and  to  determine 
all  the  terms  and  conditions  under 
which  such  lines  shall  be  oper- 
ated in  the  handling  of  the  traf- 
fic embraced.'  If  the  above  amend- 
ment applies  to  the  traffic  in  ques- 
tion, the  right  of  the  Commission 
to  establish  this  through  route  is 
clear.  The  defendants  contend 
that  it  does  not  apply,  for  the 
reason  that  this  amendment  re- 
lates only  to  traffic  which  passes 
through  the  Panama  Canal.  They 
argue  that  the  words  'or  otherwise' 
modify  the  phrase  'by  rail  and 
water'  and  not  the  phrase  'through 
the  Panama  Canal.'  But  the  plain 
everyday-reading  of  the  Act  is 
'through  the  Panama  Canal  or 
otherwise,'  and  the  defendants 
have  referred  us  to  no  canon  of 
construction  nor  to  any  reason  for 
disregarding  the  obvious  meaning 
of  these  words.  Indeed,  a  consid- 
eration of  the  situation  to  which 
the  amendment  applies  would  seem 


222  Duties  to  Interstate  Shippeks.  [^  96 

Likewise  propei'tv  trans})orted  in  interstate  com- 
merce from  interior  points  in  the  United  States  over 
a  railroad  to  Pensacola,  Fla.,  and  from  tliere  by  steam- 
ship to  Mobile,  Ala.,  and  Carabelle,  Fla.,  is  subject  to 
the  jurisdiction  of  the  Commission  to  fix  the  rates  to  and 
from  the  port  to  be  applied  to  such  traffic,  and  the 
Commission  may  determine  in  connection  with  what 
vessels  and  upon  what  terms  and  conditions  such  rates 
shall  apply." 

A  responsible  common  carrier  operating  upon  a 
naviiiable  river,  it  was  held  in  another  case,"  is  war- 
ranted in  requesting-  the  Commission  to  compel  a  rail- 
road company  to  join  with  it  in  establishing  through 
routes  and  joint  rates  between  landings  on  the  river 
points  on  the  line  of  the  railroad  company. 

While  railroad  companies  are  not  ordinarily  re- 
quired to  make  through  routes  and  joint  rates  with 
all  boat  lines  which  happen  to  be  in  a  position  to  carry 
freight  to  a  railroad  station,  irrespective  of  their  finan- 
cial responsibility  and  equipment,  yet  when  boat  lines 
are  in  fact  common  carriers  and  have  met  all  reason- 
able requirements  of  connecting  railroads  they  should 
be  permitted  to  establish  through  routes  and  publish 
joint  rates."'*^ 

to  conclusively  demonstrate  that  (Panama  Canal  Act  amending  See- 
the position  of  the  defendants  is  tion  6)  expressly  relates  to  domes- 
not  correct,  since  the  words  'or  tic  traffic  and  exists  whether  such 
otherwise'  are  pure  surplusage  if  traffic  is  to  or  from  either  com- 
read  as  the  defendants  say  they  petitive  or  non-competitive  points.'' 
should  be.  Traffic  through  the  55.  Decatur  Navigation  Co.  v. 
Panama  Canal  can  only  move  by  Louisville  &  N.  R.  Co.  31  I.  C.  C 
rail  and  water,  unless  it  moves  281.  See  also  Bowling  Green  Busi- 
from  port  to  port,  and  in  that  case  ness  Men's  Protective  Association 
we  have  no  jurisdiction.  We  hold,  v.  Evansville  &  Bowling  Green 
therefore,  that  the  Commission  has  Packet  Co.,  31  I.  C.  C.  301;  Tampa 
jurisdiction  to  establish  the  Board  of  Trade  v.  Louisville  &  N. 
through  routes  and  the  joint  rates  R  Co.,  3o  L  C.  C.  377. 
prayed  for."  56.  Truckers  Transfer  Co.  v. 
54.  In  re  Wharfage  Facilities  at  Charleston  &  W.  C.  Ry.,  27  L  C.  C. 
Pensacola,  Florida,  27  I.  C.  C.  252,  275.  Commission  Meyer  said: 
in  which  the  Commission  said:  "Any  boat  line  legitimately  acting 
"It  is  to  be  noted  that  this  power  as  a  common  carrier  should  be  per- 


<^  97  1  Carkikhs  Undkr  Commerck  Act.  223 

§  97.  Control  or  Ownership  of  Competitive  Water 
Line  by  Rail  Carrier  Subject  to  Approval  of  Commission. 
Ono  of  the  provi.^ioiis  of  the  I'auaiiia  Canal  Act  ])as.s<*d 
on  August  24,  11)12,  and  added  as  an  aniendnient  to 
Section  5  of  tlie  Interstate  Commerce  Act,  prescribes 
tliat  after  July  1,  1914,  it  sluiU  be  unlawful  for  any 
railroad  company  or  other  common  carrier  subject  to 
the  Act  to  Regulate  Commerce  to  own,  lease,  operate, 
control  or  have  any  interest  whatsoever  in  any  common 
carrier  by  water  operated  through  the  Panama  Canal 
or  elsewhere  with  which  such  carrier  does  or  may  com- 
pete for  traffic,  or  any  vessel  carrying  freight  or  pas- 
sengers upon  said  water  route  or  elsewhere  with  which 
such  railroad  or  other  counnon  carrier  does  or  may 
compete  for  traffic,  and  in  case  of  a  violation  of  the 
said  provision,  each  day  in  which  such  violation  con- 
tinues shall  be  deemed  a  separate  oifense. 

This  amendment  further  confei-s  jurisdiction  u])on 
the  Interstate  Commerce  Commission  to  determine 
(piestions  of  fact  as  to  com]:)etition,  or  possibility  of 
competition,  and,  after  full  hearing,  the  Commission 
is  given  the  power  to  extend  the  time  during  which 
any  existing  specified  service  by  water  other  than 
through  the  Panama  Canal,  may  continue  under  the 
ownership  or  control  of  the  rail  carriers,  provided,  how- 
ever, such  service  is  being  operated  in  the  interest  of 
the  public  and  is  of  advantage  to  the  convenience  and 
commerce  of  the  people,  and  that  such  extension  will 
neither  exclude,  prevent  nor  reduce  competition  on 
the  route  by  water." 

mitted  to  file  tariffs  naming  pro-  the  two  boat  lines  involved  in  this 

portional   rates   to    Port   Royal   or  case,  in  demanding  financial  secur- 

other  points  similarly  situated,  to  ity    before    entering    into    either 

apply  on  traffic  to  be  carried  fnr-  joint  rate  arrangements  or  accept- 

ther  by  rail,  whenever  such   con-  ing     freight     under     proportional 

nection  provides  an  additional  serv-  rates,  the  entire  freight  charges  to 

ice  to  shippers  which  may  reason-  be  collected  at  destination." 

ably  be  demanded.      The  rail  car-  57.    The  text  of  this  part  of  the 

rier   would   be   justified,   in   cases  Panama  Canal  Act  is  as  follows: 

where  the  connection  carrier  does  "From  and  after  the  first  day  of 

not  possess  greater  resources  than  July,  nineteen  hundred   and   four- 


224: 


Duties    to    Intekstate    Shippers. 


[§  98 


§  98.     Policy   of    Congress    in   Adoption   of   That 
Part  of  Panama  Canal  Act  Forbidding  Ownership  of 


teen,  it  shall  be  unlawful  for  any 
railroad  company  or  other  common 
carrier  subject  to  the  Act  to  regu- 
late commerce  to  own,  lease,  oper- 
ate, control,  or  have  any  interest 
whatsoever  (by  stock  ownership 
or  otherwise,  either  directly,  in- 
directly, through  any  holding  com- 
pany or  by  stockholders  or  direc- 
tors in  common,  or  in  any  other 
manner)  in  any  common  carrier 
by  water  operated  through  the 
Panama  Canal  or  elsewhere  with 
which  said  railroad  or  other  car- 
rier aforesaid  does  or  may  com- 
pete for  traffic  or  any  vessel  carry- 
ing freight  or  passengers  upon 
said  water  route  or  elsewhere 
with  which  said  railroad  or  other 
carrier  aforesaid  does  or  may 
compete  for  traffic;  and  in  case  of 
the  violation  of  this  provision 
each  day  in  which  such  violation 
continues  shall  be  deemed  a  sep- 
arate offense.  Jurisdiction  is  here- 
by conferred  on  the  Interstate 
Commerce  Commission  to  deter- 
mine questions  of  fact  as  to  the 
competition  or  possibility  of  com- 
petition, after  full  hearing,  on  the 
application  of  any  railroad  com- 
pany or  other  carrier.  Such  ap- 
plication may  be  filed  for  the  pur- 
pose of  determining  whether  any 
existing  service  is  in  violation  of 
this  section  and  pray  for  an  order 
permitting  the  continuance  of  any 
vessel  or  vessels  already  in  oper- 
ation, or  for  the  purpose  of  asking 
an  order  to  install  new  service  not 
in  conflict  with  the  provisions  of 
this  paragraph.  The  Commission 
may  on  its  own  motion  or  the  ap- 
plication of  any  vessel  in  use  by 
any  railroad  or  other  carrier  which 
has  not  applied  to  the  Commission 
and  had  the  question  of  competi- 


tion or  the  possibility  of  compe- 
tition det3rmined  as  herein  pro- 
vided. In  all  such  cases  the  order 
of  said  Commission  shall  be  final. 
If  the  Interstate  Commerce  Com- 
mission shall  be  of  the  opinion  that 
any  such  existing  specified  service 
by  water  other  than  through  the 
Panama  Canal  is  being  operated 
in  the  interest  of  the  public  and 
is  of  advantage  to  the  ronveniencj 
and  commerce  of  the  people,  and 
that  such  extension  will  neither 
exclude,  prevent,  nor  reduce  com- 
petition on  the  route  by  water 
under  consideration,  the  Interstate 
Commerce  Commission  may,  by 
order,  extend  the  time  during 
which  such  service  by  water  may 
continue  to  be  operated  beyond 
July  first,  nineteen  hundred  and 
fourteen.  In  every  case  of  such 
extention  the  rates,  schedules,  and 
practices  of  such  water  carrior 
shall  be  filed  with  the  Interstate 
Commerce  Commission  and  shall 
be  subject  to  the  Act  to  regulate 
commerce  and  all  amendments 
thereto  in  the  same  manner  and  to 
the  same  extent  as  is  the  railroad 
or  other  common  carrier  control- 
ling such  water  carrier  or  inter- 
ested in  any  manner  in  its  oper- 
ation: Provided,  any  application 
for  extension  under  the  terms  of 
this  provision  filed  with  the  In- 
terstate Commerce  Commission 
prior  to  July  first,  nineteen  hun- 
dred and  fourteen,  but  for  any 
reason  not  heard  and  disposed  of 
before  said  date,  may  be  considered 
and  granted  thereafter.  No  vessel 
permitted  to  engage  in  the  coast- 
wise or  foreign  trade  of  the  United 
States  shall  be  permitted  to  enter 
or  pass  through  said  canal  if  such 
ship  is  owned,  chartered,  operated, 


§  98  I  ('aiuuers  Un'I)i:i{  Commekck  Act.  225 

Water  Lines  by  Railroads.  Tho  amoiidment  of  1912 
to  Section  .")  r(M|uiriiii;-  a  (liscoiitinuaiico  of  railroad 
ownersliip  and  conti-ol  of  water  lines  indicates  a  clear 
and  unniistakal)le  ])olicy  on  the  ])ai't  of  C*on.<::ress  to 
sepai'ato  from  railroad  ownership,  control  or  influence, 
such  common  carrier  water  lines,  and  such,  vessels,  as 
may,  when  thus  separated,  compete  with  the  ownin^^ 
or  controllini?  companies,  except  where,  upon  investi- 
gation, it  is  found  by  the  Commission,  that  the  service 
by  watei",  other  than  tliroiinh  the  Panama  Canal,  is 
beiiii;'  o])erated  in  the  intcn'est  of  the  ))ul)lic,  is  of  advan- 
ta.ne  to  the  convenience  and  coinmerce  of  th6  jx'ople, 
and  that  its  continuance  will  neither  exclude,  ])revent 
noi-  reduce  competition  on  the  route  by  water."'' 

'IMie  i^eneral  purpose  of  Congress  in  the  enactment 
of  the  Panama  Canal  Act  was  to  preserve,  free  and  un- 
fettered, the  road-bed  via  the  Panama  Canal,  and  as 
this  phrase  is  qualified  by  the  words  ''or  elsewhere" 
the  statute  necessarily  means  that  all  the  water  routes 
of  the  country  must  be  restored  to  the  same  condition 
of  freedom  and  from  any  dominion  that  would  reduce 
their  usefulness. •'^^'■'  The  words  "may  compete  for  traffic" 
do  not  mean  a  vague,  possible  competition,  but  mean 

or  controlled  by  any  person  or  known  as  the  Sherman  Antitrust 
company  which  is  doing  business  Act,  and  amendments  thereto,  or 
in  violation  of  the  provisions  of  said  sections  of  the  Act  of  August 
the  Act  of  Congress  approved  July  twenty-seventh,  eighteen  hundred 
second,  eighteen  hundred  and  and  ninety-four.  The  question  of 
ninety,  entitled  'An  Act  to  protect  fact  may  be  determined  by  the 
trade  and  commerce  against  un-  judgment  of  any  court  of  the 
lawful  restraints  and  monopolies,'  United  States  of  competent  juris- 
or  the  provisions  of  sections  seven-  diction  in  any  cause  pending  be- 
ty-three  to  seventy-seven,  both  in-  fore  it  to  which  the  owners  or 
elusive,  of  an  Act  approved  August  operators  of  such  ship  are  parties, 
twenty-seventh,  eighteen  hundred  Suit  may  be  brought  by  any  ship- 
and  ninety-four,  entitled  'An  Act  per  or  by  the  Attorney  General 
to  reduce  taxation,  to  provide  rev-  of  the  United  States." 
enue  for  the  Government,  and  for  58.  In  re  Application  Southern 
other  purposes,'  or  the  provisions  P.  Co..  operation  of  Pacific  Mail  S. 
of  any  other  Act  of  Congress  S.  Co.  32  I.  C.  C.  690. 
amending  or  supplementing  the  59.  In  re  Application  Lake 
said  Act  of  July  second,  eighteen  Tahoe  Ry.  &  Transp.  Co.,  owner- 
hundred     and     ninety,     commonly  ship  of  boat  line.  33  I.  C.  C.  699. 

1   Coutiol  CarriiTs   1.1 


'226  Duties  to  Interstate  Shippers.  [>§  98 

a  probable,  potential  competition.  The  best  practical 
test  in  determining  competition  under  the  amendment 
is  whether  or  not  there  would  be  normal,  active  compe- 
tition between  the  rail  line  and  the  water  line  if  oper- 
ated independently  of  each  other/'" 

While  .the  first  paragraph  of  amendment  in  de- 
scribing the  carrier  by  water,  refers  to  "common  carrier 
by  water"  it  later  prohibits  such  ownership  in  "any 
vessel  carrying  freight  or  passengers."  It  is  not,  there- 
fore, necessary  that  a  steamer  be  found  to  be  a  common 
carrier,"  A  rail  carrier  does  not  necessarily  have  to 
reach  a  point  in  order  to  compete  with  water  carriers 
that  operate  directlj^  to  that  point,  but  the  competition 
may  be  found  to  exist  by  reason  of  the  rail  carrier's 
participation  in  the  joint  rates.'"'-  Ferry  companies  are 
within  the  terms  of  the  Panama  Canal  amendment.*'^ 

§  99.  Bridges  and  Bridge  Companies  Subject  to 
Federal  Act,  When.  All  bridges  used  or  operated  in 
connection  with  any  interstate  railroad,  whether  owned 
or  operated  under  a  contract,  agreement  or  lease,  are, 
under  the  provisions  of  Section  1,  included  within  the 
term  "railroad"  as  used  therein.  In  construing  the 
original  act,  the  courts  held  that  when  a  railroad  com- 
pany by  contract  acquired  the  right  to  operate  its  trains 
over  a  bridge,  the  railroad  company  was  regarded  as  the 
common  carrier  in  control  of  the  bridge;  but  the  i)ridge 
company  itself  was  not  a  common  carrier  subject  to 
the  statute  as  it  did  not  transport  persons  and  property 
and  hold  itself  out  as  a  common  carrier.''* 

60.  In  re  Application   Southern       Pennsylvania-Ontario  Transp.  Co., 
P    Co.,  ownership  of  Oil  Steamers,       34  I.  C.  C.  47. 

37  I.  C   C   528.  ^'^-     I^    ^^    Application    Buffalo, 

61.  In  re  Application   Southern       ^-  ^  ^-  ^^^  C^"  «Peration  Ontario 

Car  Ferry  Co.,  34  I.  C.  C.  52;  In  re- 
Application  Grand  T.  Ry.  Co.  of 
Canada,     operation     Ontario     Car 

62.  In  re  Application  Southern       Perry  Co  ,  34  I   C    C   49 

P.  Co..  ownership  of  Oil  Steamers,  64.     Kentucky   &   I.    Bridge   Co. 

34  I.  C.  C.  77;  In  re  Application  v.  Louisville  &  N.  R.  Co.,  37  Fed. 
Pennsylvania      Co.,     operation     of      .^67,  2  L.  R.  A.  289. 


P.    Co.,    ownership    of    Schooner 
Pasadena,  33  I.  C.  C.  476. 


"^^  I'lM  Caiuuehs  L'ndkk  Co.m.mekck  Act.  227 

WliPii,  liowcvoi",  ;i  brid^'c  r;oin|)any  asi^umos  tlio 
duties  of  a  common  t-ariicr  and  ])ai"ti('ipates  to  any  ex- 
tent in  the  movement  of  interstate  or  foreign  slii])nients, 
tlien  tlie  bridge  company  is  subject  to  the  jurisdiction 
of  the  Interstate  Commerce  Commission  as  to  the  rates 
cliarged."^  Bridges  across  rivers  connecting  two  states 
or  at  any  point  on  tlie  line  of  an  interstate  railroad 
are  instruments  of  interstate  commerce,""  and  the  states 
have  no  power  to  regulate  the  rates  over  them  even  in 
the  absence  of  the  exercise  of  the  potential  power  of 
Congress  over  them/"^  But  the  Interstate  Commerce 
Commission  has  no  power  to  regulate  the  fares  charged 
by  a  street  railroad  over  a  bridge  connecting  two  cities 
in  different  states  not  because  the  bridge  is  not  an 
instrument  of  interstate  commerce,  but  because  Congress 
has  not  given  the  power  to  the  Commission  to  regulate 
the  fares  of  street  railroads  crossing  state  lines;"*  nor 
has  the  Interstate  Commerce  Commission  jurisdiction 
over  a  bridge  connecting  two  states  which  is  independent 
and  not  connected  with  any  railroad."'-^ 

The  reasonableness  of  tolls  over  bridges  which  are 
instrumentalities  of  interstate  commerce  by  railroad, 
is  under  the  jurisdiction  of  the  Interstate  Commerce 
Commission,  and  it  has  been  held  that  the  question  of 
absorption  of  bridge  tolls  by  railroads  is  largely  a  mat- 
ter of  policy  controlled  by  the  carriers;  but  there  must 
be  no  undue  discriminations,  and,  when  the  circum- 
stances are  similar,  a  railroad  com^^any  cannot  absorb 
the  bridge  toll  at  one  crossing,  and  refuse  it  at  another.'" 

65.  West  End  Improvement  67.  Greenleaf-Johnson  Lumber 
Club  V.  Omaha  &  C.  B.  Railway  &  Co.  v.  Garrison,  237  U.  S.  251,  59 
Bridge  Co.,  17  I.  C.  C.  239.                      L.  Ed.  939,  35  Sup.  Ct.  551. 

66.  South  Covington  &  C.  St.  68.  Omaha  &  C.  B.  St.  R.  Co. 
R.  Co.  V.  City  of  Covington,  235  v.  Interstate  Commerce  Commis- 
U.  S.  537,  59  L.  Ed.  350,  35  Sup.  sion,  230  U.  S.  324,  57  L.  Ed. 
Ct.  158,  L.  R.  A.  1915F  792;  Kan-  1501,  33  Sup.  Ct.  890,  46  L.  R.  A. 
sas  City  Southern  Ry.  Co.  v.  Kaw  (N.   S.)    385. 

Valley    Drainage    Dist.,   233   U.    S.  69.     Kentucky  &  I.  Bridge  Co.  v. 

75,  58  L.  Ed.  857,  34  Sup.  Ct.  564;  Louisville    &    N.    R.    Co..    37    Fed. 

Covington     &     C.     Bridge     Co.    v.  567,  2  L.  R.  A.  289. 

Com.,  154  U.  S.  204,  38  L.  Ed.  962,  70.     Padurah  Board  of  Trade  v. 

14  Sup.  Ct.  1087.  Illinois   Cent.   R.   Co.,   29   I.   C.   C. 


228  Duties  to  Interstate  Siiippees.  [§  99 

A  bridge  company  which  is  not  a  common  carrier, 
has  no  rolling  stock  or  motive  power,  and  is  not  used 
in  connection  with  any  railroad,  cannot  be  compelled 
to  grant  a  street  railroad  the  right  to  use  the  bridge  for 
transporting  the  passenger  cars  of  an  interstate  electric 
railroad,  as  it  is  not,  under  such  circumstances,  a  com- 
mon carrier  within  the  meaning  of  the  act.'^  "Is  the 
bridge  company,"  said  the  Commission  in  the  case  last 
cited,  "a  common  carrier  subject  to  the  act  to  regulate 
commerce?  In  Kentucky  &  I.  Bridge  Co.  v.  L.  &  N.  Ry. 
Co.,  37  Fed.,  567,  the  circuit  court  held  that:  'Where  a 
railway  company,  by  contract  with  a  bridge  company, 
acquires  the  right  to  use  a  bridge  with  its  approaches, 
for  the  engines,  cars,  and  trains  of  the  railway  com- 
pany, the  first  section  of  the  'act  to  regulate  commerce' 
regards  the  railway  company  as  the  owner  or  operator 
of  the  bridge  and  approaches,  for  the  time  being,  as  to 
all  freight  transported  by  the  railway  company  over  the 
bridge;  and  as  to  all  such  traffic  the  railway  company, 
and  not  the  bridge  company,  must  be  regarded  as  the 
common  carrier.  Such  a  bridge  company  is  not,  either 
in  law  or  in  fact,  a  common  carrier  of  interstate  traffic 
within  the  scope  and  meaning  of  said  section,  and  it  can 
not  invoke  the  provisions  of  said  act  to  compel  railway 
companies  to  transact  business  with  or  through  such 
bridge  company.  Between  such  a  bridge  company  and 
the  railway  carriers  of  the  country  the  act  establishes 
no  such  reciprocal  relations,  duties,  and  obligations  as 
require  the  latter  to  form  business  connections  with 
the  former.'  In  Enterprise  Transportation  Co.  v.  P.  R. 
R.  Co.,  12  I.  C.  C,  326,  the  Commission  held  that: 
'Bridges,  ferries,   switches,   and  terminal   facilities  are 

593;  Norman  Lumber  Co.  v.  Louis-  R.  Co.,  25  I.  C.  C.   27;     Manufac- 

ville  &  N.  it.  Co.,  29  I.  C.  C.  565;  turers     &     Merchants     Ass'n     v. 

East  Dubuque  Supply  Co.  v.   Illi-  Aberdeen  &  A.  R.  Co.,  24  I.  C.  C. 

nois  Cent.  R.  Co.,  28  L  C.  C.  425;  331. 

Manufacturers  &  Merchants  Ass'n  71.     Kansas  City,  Missouri  and 

of  New  Albany  v.  Aberdeen  &  A.  Kansas    City,    Kansas    v.    Kansas 

R.    Co.,    25    T.    C.    C.    116:      Hafer  City  Viaduct  &  Terminal  Ry.  Co., 

Lumber    Co.   v.    Chicago   &   N.   W.  24   I.   C.   C.   22. 


<§  99]  Carriers  Under  Commerce  Act.  229 

declared  to  be  included  within  the  term  'railroad'  not 
for  the  purpose  of  exeMi[)ting  tiiem  from  any  liability 
to  ])ublish  and  observe  their  rates  when  such  ferries  or 
bridi^es  are  o])erated  by  their  owners  as  common  car- 
riers, but  rather  to  make  certain  that  where  those  agen- 
cies are  employed  by  railroads  the  transportation  service 
rendered  by  them  shall  still  be  subject  to  the  provisions 
of  the  act  to  regulate  commerce  *  *  *  .  A  rail- 
road company  may  without  doubt  provide  by  contract 
with  an  independent  company  for  the  construction  of  a 
bridge  or  ferry  to  be  used  as  a  ])art  of  its  line.  It  can 
jierhaps  extend  its  contract  to  the  operation  of  the  bridge 
or  ferry  by  its  owner  when  constructed,  but  in  such 
case  the  bridge  company  or  the  ferry  company  is  not 
a  common  carrier.  The  railroad  is  the  carrier  and  answer- 
able to  the  law  as  such.'  A  common  carrier  is  one 
who  holds  himself  out  as  ready  to  engage  in  transporta- 
tion for  hire  as  a  public  employment,  and  in  general 
the  liability  of  a  carrier  does  not  attach  to  one  who  does 
not  so  hold  himself  out.  The  bridge  company  in  the 
instant  case  does  not  hold  itself  out  to  be  a  common  car- 
rier or  a  carrier  of  passengers  and  freight.  No  freight 
has  ever  been  transported  by  rail  across  its  structure  and 
the  passengers  which  were  carried  over  it  were  trans- 
ported in  the  cars  and  by  the  motive  power  of  the  street 
railway  company.  It  has  no  motive  power  and  no  rolling 
stock.  Its  structure  is  not  now,  although  it  has  been 
in  the  past,  rented  to  or  operated  in  connection  with 
any  railroad.  Foot  passengers,  vehicles,  and  animals 
pass  over  the  structure.  They  are  interstate  commerce, 
but  not  such  as  is  subject  to  the  provisions  of  the  act 
to  regulate  commerce.  The  bridge  company  rents  or 
is  willing  to  rent  its  structure,  but  in  our  view  it  is  not 
a  common  carrier  subject  to  our  act.  Clearly  the  street 
railway  company  is  subject  to  our  jurisdiction.  But, 
inasmuch  as  we  have  no  power  to  require  the  bridge 
company  to  obey  any  of  the  provisions  of  the  act  to 
regulate  commerce,  how  can  we  exercise  jurisdiction 
over  the  street  railway  company  to  the  extent  of  re- 
quiring it  to  operate  over  the  viaduct?    How  could  we 


2.">()  Duties  to  Interstate  Sihppeus.  [^  99 

require  the  bridge  coni]iany  to  grant  to  the  street  rail- 
way company  the  right  to  nse  the  viaduct!  The  present 
case  is  essentially  different  from  the  Omaha  &  Conncil 
Bluffs  case,  supra,  in  that  there  the  defendant  was  a 
common  carrier  of  interstate  passengers.  In  the  estab- 
lishment of  a  through  route  the  power  of  the  Commis- 
sion is  limited  by  the  provision  that  it  'shall  not,  how- 
ever, establish  any  through  route,  classification,  or  rate 
between  street  electric  passenger  railways  not  engaged 
in  the  general  business  of  transporting  freight  in  ad- 
dition to  their  passenger  and  express  business  and  rail- 
roads of  a  different  character.'  The  bridge  company 
is  neither  a  railroad,  a  water  line,  or  a  common  carrier, 
and  we  have  no  jurisdiction  over  it." 

§  100.  Street  Railroads  Crossing  State  Lines  not 
Subject  to  Interstate  Commerce  Act.  For  many  years 
the  Interstate  Commerce  Commission  held  that  ordinary 
street  railway  companies  engaged  in  transporting  pas- 
sengers across  a  state  line  were  common  carriers  by 
''railroad"  within  the  Act.^^  While  recognizing  that 
the  term  "railroad"  usually  applied  and  meant  ordi- 
narily commercial  railroads  and  not  street  railroads,  the 
Commission  adopted  the  view  that  it  was  the  evident 
intention  of  Congress  to  include  within  the  Act  any  and 
all  carriers  engaged  in  interstate  commerce  by  railroad. 
An  order  was,  therefore,  made  prohibiting  a  bridge 
company  operating  a  street  railroad  across  the  Missouri 
River  from  Council  Bluffs,  Iowa,  to  Omaha,  Nebraska, 
from  charging  more  than  ten  cents  for  a  trip  between 
the  two  states." 

Subsequently,  upon  a  suit  to  annul  the  order,  the 
court  held  that  the  Interstate  Commerce  Act  did  not 

72.      Bitzer    v.    Washington-Vir-  C.    232;     Willson    v.    Rock    Creek 

ginia  Ry.  Co.,  24  I.  C.  C.  255;    Kan-  Ry.   Co.   of   District   of  Columbia, 

gas    City,    Missouri    and    Kansas  7  I.  C.  R.  83. 

City,  Kansas  v.  Kansas  City  Via-  73.       West     End     Improvement 

duct   &   Terminal   Ry.    Co.,    24    I.  Club  v.   Omaha  &  C.   B.   Railway 

C.    C.    22;     Boyle    v.    Great    Falls  &  Bridge  Co.,  17  I.  C.  C.  239. 
&   Old   Dominion   R.   Co.,  20   I.   C. 


<^  100]  Carkieks  Under  (.'ommerck  Act.  231 

apply  to  street  railway  companies,  and  a  motion  for  a 
preliminary  injunction  was  grante'J."*  Tlie  case  was  then 
transferred  to  the  Commerce  Court,  and,  on  a  demurrer, 
to  the  bill  that  court  held  that  the  statute  included 
street  railroads.''  On  appeal  of  the  same  case  to  the 
United  States  Supreme  Court,  it  was  finally  decided  that 
the  statute  did  not  include  ordinary  street  railroads.^" 
The  court  said:  "The  appellants  cite  decisions  from 
twelve  states  holding  that  in  a  statute  the  word  'railroad' 
does  not  mean  'street  railroad.'  The  defense  cite  decisions 
to  the  contrary  from  an  equal  number  of  states.  The 
present  record  discloses  a  similar  disagreement  in  fed- 
eral tribunals.  For  not  only  did  the  Commerce  Court 
and  the  Circuit  Court  differ,  but  it  appears  that  the 
members  of  the  Conunission  were  divided  on  the  sub- 
ject when  this  case  was  decided  and  also  when  the  ques- 
tion was  first  raised  in  Willson  v.  Rock  Creek  Ry.  Co., 
7  I.  C.  C.  83.  This  conflict  is  not  so  great  as  at  first 
blush  would  appear.  For  all  recognize  that  while  there 
is  similarity  between  railroads  and  street  railroads,  there 
is  also  a  difference.  Some  courts,  emphasizing  the  simi- 
larity, hold  that  in  statutes  the  word  'railroad'  includes 
street  railroad,  unless  the  contrary  is  required  by  the 
context.  Others,  emphasizing  the  dissimilarity,  hold  that 
'railroad'  does  not  include  street  railroad  unless  re- 
quired by  the  context,  since,  as  tersely  put  by  the  Court 

74.     Omaha  &  C.  B.  St.  Ry.  Co.  Co.   v.  Board  of  Railroad  Com'rs, 

V     Interstate   Commerce    Commis-  73  Kan.  168,  61  L.  R.  A.  475,  84 

sion,  179  Fed.  243.    The  Court  cit-  Pac.  755;    Sams  v.  St.  Louis  &  M. 

ed  the  following  cases:     Funk  v.  ^    ^^^  -^^4  -^^^    53^  ^3  g    ^^    ^gg. 

St.   Paul   City   Ry.   Co.,   61   Minn.  Thompson-Houston  Elec.  Co   v   Si*- 
435,   29   L.  R.  A.   208,   52   Am.   St.  ^0  Or.  60,  10  L.  R.  A.  251,  23 

Rep.  608    G3N.  W.  10^9;    State  v.  ^^    ^^  ^^ 

Duluth   St.  Ry.   Co.,  76   Minn.   96,  „r:      ^      1      /  ^    t,    ^.    ^       ^ 

57    L    R    A.    63,    78    N.    W.    1032;  ^^-     ^maha  &  C.  B.  St.  Ry.  Co. 

Manhattan  Trust  Co.  v.  Sioux  City  ""■    Interstate   Commerce    Commis- 

Cable  Ry.  Co..  68  Fed.  82;     Board  sion,  191  Fed.  40. 
of  Railroad  Com'rs  v.  Market  St.  76.     Omaha  &  C.  B.  St.  Ry.  Co. 

Ry.  Co..  132  Cal.  677,  64  Pac.  1065;  v.    Interstate   Commerce   Coramis- 

Gyger    v.    Philadelphia    City    Pas-  sion,  230  U.  S.  324,  57  L.  Ed.  1501. 

senger  Ry.  Co.,  l:u;  Pa.  96.  20  Atl.  33  Sup.  Ct.  890,  46  L.  R.  A.  (N.  S.) 

399;     Kansas  City,  O.   B.  &  E.   R.  385. 


232  Duties  to  Interstate  Shippers.  [§  100 

of  Appeals  of  Kentucky,  'a  street  railroad,  in  a  tech- 
nical and  popular  sense,  is  as  different  from  an  ordinary 
railroad  as  a  street  is  from  a  road.'  Louisville  &  Port- 
land E.  E.  Co.  V.  Louisville  City  Ey.  Co.,  2  Duvall,  175. 
But  all  the  decisions  hold  that  the  meaning  of  the  word 
is  to  be  determined  by  construing  the  statute  as  a  whole. 
If  the  scope  of  the  act  is  such  as  to  show  that  both 
classes  of  companies  were  within  the  legislative  con- 
templation, then  the  word  'railroad'  will  include  street 
railroad.  On  the  other  hand,  if  the  act  was  aimed  at 
railroads  proper,  then  street  railroads  are  excluded 
from  the  provisions  of  the  statute.  Applying  this  uni- 
versally accepted  rule  of  construing  this  word,  it  is  to 
be  noted  that  ordinary  railroads  are  constructed  on  the 
companies'  own  property.  The  tracks  extend  from  town 
to  town  and  are  usually  connected  with  other  railroads, 
which  themselves  are  further  connected  with  others,  so 
that  freight  may  be  shipped,  without  breaking  bulk, 
across  the  continent.  Such  railroads  are  channels  of 
interstate  commerce.  Street  railroads,  on  the  other 
hand,  are  local,  are  laid  in  streets  as  aids  to  street  traf- 
fic, and  for  the  use  of  a  single  community,  even  though 
that  community  be  divided  by  state  lines,  or  under  dif- 
ferent municipal  control.  When  these  streets  railroads 
carry  passengers  across  a  state  line  they  are,  of  course, 
oiigaged  in  interstate  commerce,  but  not  the  commerce 
which  Congress  had  in  mind  when  legislating  in  1887. 
Street  railroads  transport  passengers  from  street  to 
street,  from  ward  to  ward,  from  city  to  suburbs,  but 
the  commerce  to  which  Congress  referred  was  that  car- 
ried on  by  railroads  engaged  in  hauling  passengers  or 
freight  'between  States,'  'between  States  and  Terri- 
tories,' 'between  the  United  States  and  foreign  coun- 
tries.' The  act  referred  to  railroads  which  were  re- 
fjuired  to  post  their  schedules — not  at  street  corners 
where  passengers  board  street  cars,  but  in  'every  depot, 
station  or  office  where  passengers  or  freight  are  received 
for  transportation.'  The  railroads  referred  to  in  the  act 
were  not  those  having  separate,  distinct  and  local  street 
lines,   but   those   of   whom   it  was  required  that   they 


§  101]  Carriers  Under  Commerce  Act.  233 

sliould  make  .ioinl  rates  and  reasonable  facilities  for 
intercliang:e  of  traflic  witli  connecting-  lines,  so  that 
freight  might  be  easily  and  expeditiously  moved  in  inter- 
state commerce.  Every  provision  of  the  statute  is  ap- 
plicable to  railroads.  Only  a  few  of  its  requirements 
are  applicable  to  street  railroads  which  did  not  do  the 
business  Congress  had  in  contemplation  and  hud  not 
engaged  in  the  pooling,  rebating  and  discrimination 
which  the  statute  was  intended  to  jjrohibit.  This  was 
recognized  in  AVillson  v.  Rock  Creek  Ry.  Co.,  7  I.  C.  C. 
83,  where,  although  it  was  held  that  the  statute  a])plied 
to  a  street  railroad  between  Washington,  D.  C,  and  a 
point  in  Maryland,  the  Commission  nevertheless  said 
(7  I.  C.  C.  88):  'It  may  be  conceded  that  this  class  of 
railroads  was  not  specifically  within  the  contemplation 
of  the  framers  of  that  law,  for  the  evils  which  it  was 
intended  to  remedy  would,  in  the  nature  of  the  case, 
but  rarely  arise  in  the  management  of  such  roads  in 
their  dealing  with  the  public'  Street  railroads  not 
being  guilty  of  the  mischief  sought  to  be  corrected,  the 
remedial  provisions  of  the  statute  not  being  applicable 
to  them,  commands  upon  every  railroad  'subject  to  the 
act'  being  such  that  they  could  not  be  obeyed  by  street 
railroads  because  of  the  nature  of  their  business  and 
character  and  location  of  their  tracks,  it  is  evident  that 
the  case  is  within  that  large  line  of  authorities  which 
hold  that  under  such  a  statute  the  word  'railroad'  can- 
not be  construed  to  include  street  railroad." 

§  101.  Electric  Interurban  Railroads  Engaged  in 
Interstate  Commerce  Controlled  by  Statute.  Electric 
interurban  railroads  are  within  the  statute  and  the  juris- 
diction of  the  Commission  thereunder  when  engaged  in 
interstate  commerce."  There  is  no  inconsistency  in 
holding  that  these  railroads  are  subject  to  the  statute 
and  that  street  railroads  are  not,  for  street  railroads  are 
laid  in  streets  as  aids  to  street  traffic  and  usually  for 

77.  Chicago,  0.  &  P.  Ry.  Co.  v. 
Chicago  &  N.  W.  Ry.,  33  I.  C.  C. 
573. 


2M  Duties  to  Interstate  Shippers.  [§  101 

the  use  of  a  single  community,  even  if  tliat  community 
is  divided  by  state  lines  or  is  under  different  municipal 
control.  But  electric  interurban  railroads  run  through 
the  country  from  town  to  town  and  usually  haul  pas- 
stMigers,  freight,  express  and  mail  for  long  distances 
and  at  high  speed. '^  The  statute  makes  no  distinction 
between  "railroads"  that  are  operated  by  electricity 
and  those  that  use  steam." 

§  102.  Status  of  Terminal  Railroads  and  Belt  Lines 
Participating  in  Movement  of  Interstate  Traffic.  Ter- 
minal and  belt  railroads  hauling  traffic  between  the 
termini  of  trunk  lines  and  industries  are  common  car- 
riers within  the  meaning  of  the  Act  if  they  participate 
to  any  extent  in  the  movement  of  interstate  or  foreign 
shipments. 

The  length  of  a  railroad  is  entirely  immaterial  in 
determining  whether  it  is  a  common  carrier  engaged  in 
interstate  commerce.  In  fact,  the  Act  itself  defines  a 
railroad  as  including  all  switches,  tracks  and  terminal 
facilities  used  or  necessary  in  the  transportation  of  per- 
sons or  property.  This  necessarily  includes  a  railroad 
confined  strictly  within  the  boundaries  of  a  single  city 
or  county.  For  example,  a  stock  yards  company  which 
owned  terminal  facilities  for  transporting  interstate 
shipments  from  trunk  lines  to  the  stock  yards  at  Chicago 
and  its  lessee  which  operated  and  hauled  the  cars  over 
such  railroad,  were  both  held  to  be  common  carriers 
and  amenable   to   all   the   provisions  of  the  Interstate 

78.  United  States  v.  Butler  make  such  distinction.  Both  are 
County  R.  Co.,  234  U.  S.  29.  58  subject  to  the  Act  when  engaged  In 
L  Ed.  1196,  34  Sup.  Ct.  748;  Unit-  interstate  transportation  and  are 
ed  States  v.  Louisiana  &  Pac.  R.  entitled  to  equal  consideration  in 
Co.,  234  U.  S.  1,  58  L.  Ed.  1185,  34  ^j^y  controversy  before  us.  More- 
Sup.  Ct.  741.  over,    progress    in    the    science    of 


electricity  and  the  rapid  increase 


79.     Chicago  &  M.  E.  R.  Co.  v. 
Illinois  Cent.  R.  Co.,  13  I.  C.  C.  20, 

in     which    Commissioner    Harlan  '"^  "^^  ^^^^«««  *«^  '^^  application 

said:     "The  act  makes  no  distinc-  ^^^^^  ^^^   ^^^^^  practical  railroau 

tion    between    railroads    that    are  men  to  think  that  we  may  be  meas- 

operated  by   electricity  and   those  urably  near  its  general  use  as  the 

that  use  steam:    nor  has  the  Com-  chief  motive  power  in  transporta- 

mission    thought    at    any    time   to  tion." 


§  102] 


(  'aHUIKHS    rXDKR   CoMMERCE   AcT. 


235 


(^)nini(M-f'o  Act.'"  The  fact  that  iicitlicr  of  them  issued 
through  l)ills  of  lading-  was  not  controlling;  for  it  is  the 
cliaracter  of  the  service  and  not  the  manner  of  hauling 
that  dctci'inines  their  interstate  status. 

Similarly  a  company  which  furnished  terminal  facil- 
ities for  trunk  lines  and  a  steamship  system  of  which 
it  formed  a  part,  was  held  to  be  a  common  carrier  and 
under  the  control  of  the  Interstate  Commerce  Commis- 
sion to  the  extent  that  the  commerce  handled  by  it  was 
interstate.*'  To  hold  that  such  companies  are  not  with- 
in the  purview  of  the  Act  would  enable  the  railroad  com- 
panies to  exempt  their  terminal  facilities  from  the  con- 
trol of  the  Interstate  Commerce  Commission  by  organiz- 
ing separate  corporations.  The  states  and  state  com- 
missions have  no  power  to  regulate  and  determine  the 
terminal  charges  for  switching  service  as  to  interstate 
shipments.*-    In  the  regulation  of  interstate  and  foreign 


80.  United  States  v.  Union 
Stock  Yard  &  Transit  Co.  of  Chi- 
cago, 22G  U.  S.  286,  57  L.  Ed.  226, 
33   Sup.  Ct.  83. 

81.  Southern  Pac.  Terminal  Co. 
V.  Interstate  Commerce  Commis- 
sion, 219  U.  S.  498,  55  L.  Ed.  310. 
31  Sup.  Ct.  279.  See  also  Inter- 
state Commerce  Commission  v. 
Stickney,  215  U.  S.  98,  54  L.  Ed. 
112,  30  Sup.  Ct.  66;  Southern  R. 
Co.  V.  St.  Louis  Hay  &  Grain  Co., 
214  U.  S.  297,  53  L.  Ed.  1004,  29 
Sup.  Ct.  678;  Interstate  Commerce 
Commission  v.  Chicago  B.  &  Q. 
R.  Co.,  186  U.  S.  320,  46  L.  Ed. 
1182,  22  Sup.  Ct.  824,  Judge  Mc- 
Kenna,  in  Southern  Pac.  Terminal 
Co.  V.  Interstate  Commerce  Com- 
mission, snjrra,  said:  "The  termi- 
nal company  owns  no  cars  or  loco- 
motives and  issues  no  bill  of  lad- 
ing. It  owns  no  stock  in  any  of 
the  railroads  or  corporations  in 
which  the  Southern  Pacific  owns 
stock.  It  carries  on  a  wharfage 
business  and  publishes  a  schedule 
of     charges     for     such     business, 


which,  however,  is  not  filed  with 
the  Interstate  Commerce  Commis- 
sion. *  *  *  And  surely  a  sys- 
tem so  constituted  and  used  as  an 
instrument  of  interstate  commerce 
may  not  escape  regulation  as  such 
because  one  of  its  constituents  is 
a  wharfage  company  and  its  domi- 
nating power  a  holding  company. 
As  well  said  by  the  Interstate 
Commerce  Commission,  a  corpora- 
tion such  as  this  Terminal  Com- 
pany which  has  competing  lines, 
should  not  be  permitted  to  defeat 
the  jurisdiction  of  this  Commis- 
sion by  showing  that  it  is  not  in 
fact  owned  by  any  railroad  com- 
pany. The  Terminal  Company  is 
part  and  parcel  of  the  system  en- 
gaged in  the  transportation  of 
commerce,  and  to  the  extent  that 
such  commerce  is  interstate  the 
Commission  has  jurisdiction  to 
supervise  and  control  it  within 
statutory   limits." 

82.  Wilson  Produce  Co.  v.  Penn- 
sylvania R.  Co.,  14  I.  C.  C.  170. 


236 


Duties  to  Interstate  Shippers. 


[§  102 


shipments,    terminal   companies  may   be   compelled    to 
establish  through  routes  and  joint  rates. *^ 

§  103.  Stock  Yards  Company  Transferring  Live- 
stock Between  its  Pens  and  Tracks  of  Trunk  Lines,  a 
Common  Carrier.     The  Act  to  Regulate  Commerce,  lim- 


83.  Pennsylvania  Co.  v.  United 
States,  236  U.  S.  351,  59  L.  Ed.  616, 
35  Sup.  Ct.  370;  Manufacturers 
Ry.  Co.  V.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.,  21  I.  C.  C.  304.  "The  Act 
as  amended  June  29,  1906,  34  St. 
584"  said  the  Supreme  Court  in 
the  first  case  cited,  "defines  what 
is  meant  by  common  carriers — en- 
gaged in  transportation  by  rail- 
road— which  are  brought  within 
the  control  of  the  Act  and  a  rail- 
road is  defined  to  include  all 
switches,  spurs,  tracks  and  termi- 
nal facilities  of  every  kind,  used 
or  necessary  in  the  transportation 
of  persons  or  property  designated 
in  the  Act,  and  also  all  freight  de- 
pots, yards  and  grounds  used  or 
necessary  in  the  transportation  or 
delivery  of  any  of  said  property. 
Not  only  does  the  Act  define  rail- 
roads, but  it  specifically  defines 
what  is  meant  by  transportation, 
which  is  made  to  include  'cars  and 
other  vehicles  and  all  instrumen- 
talities and  facilities  of  shipment 
or  carriage,  irrespective  of  owner- 
ship or  of  any  contract,  express  or 
implied,  for  the  use  thereof  and 
all  services  in  connection  with 
the  receipt,  delivery,  elevation,  and 
transfer  in  transit,  ventilation,  re- 
frigeration or  icing,  storage,  and 
handling  of  property  transported.' 
It  is  made  the  duty  of  every  car- 
rier 'subject  to  the  provisions  of 
this  Act,  to  provide  and  furnish 
such  transportation  upon  reason- 
able request  therefor,  and  to  es- 
tablish   through    routes    and    just 


and  reasonable  rates  applicable 
thereto';  and  on  June  18,  1910,  c. 
309,  36  Stat.  539,  545,  it  was  addi- 
tionally provided  that  the  carrier 
should  'provide  reasonable  facili- 
ties for  operating  such  through 
routes  and  make  reasonable  rules 
and  regulations  with  respect  to 
the  exchange,  interchange,  and  re- 
turn of  cars  used  therein,  and  for 
reasonable  compensation  to  those 
entitled  thereto.'  See  United 
States  V.  Union  Stock  Yard  &  Tran- 
sit Co.,  226  U.  S.  286,  and  as  to 
the  character  of  such  commerce, 
Illinois  Central  R.  R.  v.  Railroad 
Commission  of  Louisiana,  decided 
February  1,  1915,  ante,  p.  157  *  *  * 
There  can  be  no  question  that 
when  the  Pennsylvania  Railroad 
used  these  terminal  facilities  in 
connection  with  the  receipt  and 
delivery  of  carload  freight  trans- 
ported in  interstate  traffic,  it  was 
subject  to  the  provisions  of  the 
Act,  and  it  was  obliged  as  a  com- 
mon carrier  in  that  capacity  to  af- 
ford all  reasonable,  proper  and 
equal  facilities  for  the  interchange 
of  traffic  with  connecting  lines  and 
for  the  receiving,  forwarding  and 
delivering  of  property  to  and 
from  its  own  lines  and  such  con- 
necting lines,  and  was  obliged  not 
to  discriminate  in  rates  and 
charges  between  such  connecting 
lines.  By  the  amendments  to  the 
Act,  the  facilities  for  delivering 
freight  of  a  terminal  character 
are  brought  within  the  terms  of 
the  transportation  to  be  regulated." 


§  103 


Carriers  Under  Commerce  Act. 


237 


itin<>-  its  a))i)lifation  as  it  does  to  common  carriers,  was 
I)ass('(l  ill  full  \ie\v  and  re('()<4iiition  of  tlie  common  law 
under  wliicli  the  attitude  and  actions  of  tlie  person, 
whetlicr  natural  or  artificial,  determines  whether  lie  or 
it  is  in  law  a  comiiion  cai'rier.'*''  The  test  to  be  applied 
in  detcrniinini;-  whether  a  i)erson  is  a  common  carrier 
really  is  whether  he  holds  out  either  expressly,  or  by 
a  course  of  conduct,  that  he  will,  so  long  as  he  has 
room,  carry  for  hire  the  goods  of  every  person  indif- 
ferently who  will  bring  goods  to  him  to  be  carried;*^ 
but  there  must  be  a  bona  fide  holding  out  as  a  common 
carrier  coupled  with  the  ability  to  carry  for  hire. 

A  stock  yards  company,  holding  itself  out  in  good 
faith  to  carry  and  transport  liv^estock  for  hire  between 
its  stock  yards  and  points  of  connection  with  the  tracks 
of  trunk  lines  whose  tracks  connect  with  its  own,  is  a 
common  carrier  within  the  purview  of  the  statute.^"  The 


84.  Manufacturers  Ry.  Co.  v. 
St.  Louis,  I.  M.  &  S.  Ry.  Co.,  28 
I  C.  C.  93;  Manufacturers  Ry. 
Co.  V.  St.  Louis,  L  M.  &  S.  Ry. 
Co.,  21  I.  C.  C.  304. 

85.  Liverpool  &  G.  W.  S.  Co. 
V.  Phenix  Ins.  Co.,  129  U.  S.  397, 

32  L.  Ed.  788,  9  Sup.  Ct.  469; 
Bank  of  Kentucky  v.  Adam's  Exp. 
Co.,  93  U.  S.  174,  23  L.  Ed.  872; 
New  York  Cent.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357,  21  L. 
Ed.  627;  Crane  Iron  Works  v. 
United  States,  209  Fed.  238; 
Second  Industrial  Railways  Case, 
34  I.  C.  C.  596;  In  re  Rates  in  Chi- 
cago Switching  Dist.,  34  I.  C.  C. 
234;  Industrial  Railways  Case,  32 
I.  C.  C.  129;  Stongea  Coal  &  Coke 
Co.  V.  Louisville  &  N.  R.  Co.,  23 
I  C.  C.  17;  General  Elec.  Co.  v. 
New  York  Cent.  &  H.  River  R.  Co., 
14  I.  C.  C.  2137. 

86.  United  States  v.  Union 
Stockyard  and  Transit  Co.  of  Chi- 
cago, 226  U.  S.  286,  57  L.  Ed.  226, 

33  Sup.  Ct.  83;  Southern  Pac. 
Terminal    Co.    v.    Interstate   Com- 


merce Commission,  219  U.  S.  498, 
55  L.  Ed.  310,  31  Sup.  Ct.  279; 
Interstate  Commerce  Commission 
V.  Stickney,  215  U.  S.  98,  54  L.  Ed. 
112,  30  Sup.  Ct.  66;  Central  Stock- 
yards Co.  V.  Louisville  &  N.  R. 
Co.,  192  U.  S.  568,  48  L.  Ed.  565, 
24  Sup.  Ct.  339;  Interstate  Com- 
merce Commission  v.  Chicago,  B. 
&  Q.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  2?  Sup.  Ct.  824;  Coving- 
ton Stockyards  Co.  v.  Keith,  139 
U.  S.  128,  35  L.  Ed.  73,  11  Sup.  Ct. 
461;  North  Pennsylvania  R.  Co. 
v  Commercial  Nat.  Bank,  123  U. 
S.  727,  31  L.  Ed.  287,  8  Sup.  Ct. 
266;  Union  Stockyards  Co.  of 
Omaha  v.  United  States,  94  C.  C. 
A.  626,  169  Fed.  404,  in  which  Mr. 
Justice  Van  Deventer  said:  "The 
carriage  of  these  shipments  from 
the  transfei"  track  to  the  sheds  or 
pens  and  vice  vcisa  is  no  less  a 
part  of  their  transit  between  their 
points  or  origin  and  destination 
than  is  their  carriage  over  any 
other  portion  of  the  route.  Trua, 
there  is  a  temporary  stoppage  of 


238  Duties  to  Interstate  Shippers.  [§  103 

Interstate  Commerce  Commission  decided  that  a  stock 
yards  company  at  Kansas  City  wliicli  held  itself  out  to 
transport  cars  of  livestock  from  the  trunk  lines  to  its 
pens  solely  in  order  to  impose  a  trackage  charge  through 
a  published  tariff,  and  whose  real  purpose  was  to  secure 
compensation  for  the  use  of  its  tracks  from  the  trunk 
line,  was  not  a  common  carrier.^'  Subsequently  a  simi- 
lar ruling  was  made  as  to  some  short  lines  of  railroad 
serving  industries.^^ 

§  104  Status  of  Logging  Roads  as  Interstate  Car- 
riers.— the  Tap  Line  Cases.  The  extent  of  the  business 
of  a  railroad  is  not  the  test  or  criterion  in  determining 
its  character  as  a  common  carrier,  but  it  is  the  right  of 
the  public  to  use  its  facilities  and  to  demand  service  of 
it.  The  application  of  this  principle  to  small  industrial 
railroads  owned  by  or  affiliated  with  lumber  companies  in 
the  lumber  districts  of  the  country  and  commonly  known 
as  tap  lines,  led  the  Supreme  Court  to  set  aside  the  decis- 
ion and  order  of  the  Commission  as  to  the  character 
of  these  companies.^^ 

These  logging  roads,  by  which  logs  are  hauled  from 
the  timber  to  the  lumber  mills  and  the  products  thereof 
from  the  mills  to  the  trunk  lines  of  the  carriers,  were, 
as  a  rule,  originally  purely  mill  propositions,  being  plant 
facilities;  but  many  of  them  soon  reached  a  point  where 

the    loaded    cars    at    the    transfer  part  of  the  transportation  of  every 

back,  but  that  is  merely  incidental,  live    stock    shipment    which    they 

and  does  not  break  the  continuity  accept    for    carriage    to    or    from 

of  the  transit  any  more  than  does  ^^at    point,    including    such    ship- 

the    usual    transfer    of   such    cars  ^^^^^   ^^   ^^^   interstate." 
from  one  carrier  to  another  at  a 
connecting   point.      And    it    is    of 
little   significance  that  the  stock- 
yards company  does  not  hold  it- 

self  out  as  ready  or  willing  gener-  ^8.   ^Second  Industrial  Railways 

ally   to   carry   live    stock   for   the  ^^^^'  ^*  ^-  ^-  ^-  ^^^• 

public,   for   all   the   railroad   com-  89.      United     States    v.    Butler 

panies    at    South    Omaha    do    so  County  R.  Co.,  234  U.  S.  29,  58  L. 

hold  themselves  out,  and  it  stands  Ed.    1196,    34    Sup.    Ct.    748;     Tap 

ready  and  willing  to  conduct,  and  Line  Cases,  234  U.  S.  1,  58  L.  Ed. 

actually  does  conduct,  for  hire  a  1185,  34  Sup.  Ct.  841. 


87.  Atchison,  T.  &  S.  F.  Ry. 
Co.  V.  Kansas  City  Stock  Yards 
Co.,  33  I.  G.  C.  92. 


§   l')4i 


CaHIMKKS    r.NDKK   COMMERCE   AcT. 


239 


thoy  cn^a^od  in  other  })iisiTioss  to  a  greater  or  less  ex- 
tent. As  llie  len<>:tli  of  the  road  increased  and  the  lum- 
ber was  taken  off,  otlier  industries  obtained  a  foothold 
alon,<2:  the  line  and  various  commodities  besides  lumber 
were  transported  over  these  lo<;ging  roads.  In  this  man- 
ner the  business  of  some  of  these  tap  lines  (|e\-eh)j)ed 
until  what  was  a  loo^o-in^-  n,ad  pure  and  simple  became 
a  connnon  carrier  of  miscellaneous  freight  and  pas- 
sengers."" 

As  long  as  these  railroads  were  engaged  exclusively 
in  the  trans]wrtation  of  logs  of  the  affiliated  lumber 
comi)anies,  they  were  a  part  of  the  plant  facilities  of 
the  mills  owned  by  the  lumber  concerns.  When,  how- 
ever, they  ceased  to  be  private  adjuncts  of  the  lumber 
industries,  or  mere  appendages  to  the  mills,  and  became 
common  carriers  even  to  a  small  extent,  they  thei'e})y 
became  public  institutions  and  subject  to  regulations  as 
carriers.''^  They  then  became  entitled  to  participate  in 
joint  rates  with  trunk  lines  as  to  proprietary  as  well  as 
nonpro])rietary  tratific;"-  but  if  the  division  of  joint  rates 


90.  Kaiil  Lumber  Co.  v.  Central 
of  Georgia  Ry.  Co.,  20  I.  C.  C.  4.^0: 
Star  Grain  &  Lumber  Co.  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  17  L  C.  C. 
338,  14  L  C.  C.  364:  Central  Yel- 
low Pine  Ass'n  v  Illinois  Cent.  R. 
Co.,  10  I.  C.  C.  505;  Central  Yellow 
Pine  Ass'n  v.  Vicksburg,  S.  P.  R. 
Co.,  10  I.  C.  C.  193. 

91.  Tap  Line  Case  v.  Louisiana 
&  P.  Ry.  Co.,  34  I.  C.  C.  116;  Tap 
Line  Case.  31  I.  C.  C.  490. 

92.  "But  a  common  carrier 
performing  service  as  such,  regu- 
lated and  operated  under  compe- 
tent authority,  as  observed  by 
Commissioner  Prouty  in  Kaul 
Lumber  Co  v.  Central  of  Georgia 
Railway  Co..  20  L  C.  C.  450,  456 
is  no  longer  a  mere  appendage  of 
a  mill  'but  a  public  institution.' 
It  thus  becomes  apparent  that  the 
real  question  in  these  cases  is  the 
true  character  of  the  roads  here  in- 


volved. Are  they  plant  facilities 
merely  or  common  carriers  with 
rights  and  obligations  as  such?  It 
is  insisted  that  these  roads  are  not 
carriers  because  the  n  ost  of  their 
traffic  is  in  their  own  logs  and 
lumber  and  that  only  a  small  part 
of  the  traffic  carried  is  the  prop- 
erty of  others.  But  this  conclu- 
sions loses  sight  of  the  principle 
that  the  extent  to  which  a  railroad 
is  in  fact  ased,  does  not  determine 
the  fact  whether  it  is  or  is  not  a 
common  carrier.  It  is  the  right 
of  the  public  to  use  the  road's  fa- 
cilities and  to  demand  service  of 
it  rather  than  the  extent  of  its 
business  which  is  the  real  crite- 
rion determinative  of  its  character. 
This  principle  has  been  frequent- 
ly recognized  in  the  decisions  of 
the  courts."  Tap  Line  Cases,  234 
U.  S.  1.  58  L.  Ed.  1185,  34  Sup.  Ct. 
841. 


240  Duties  to  Intekstate  Shippees.  [§  104 

is  sucli  as  to  amount  to  a  rebate  or  discrimination  in 
favor  of  the  owner  of  the  tap  line  because  of  an  exces- 
sive amount  in  view  of  the  service  rendered,  the  Com- 
mission may  reduce  the  amount  so  that  the  tap  line  will 
receive  just  compensation  only."^ 

§  105.  Private  Car  Lines  Not  Common  Carriers 
Within  Meaning  of  Act  to  Regulate  Commerce.  Under 
the  Hepburn  Amendment  of  1906  the  term  "transporta- 
tion" was  declared  to  include  cars  and  other  vehicles 
and  all  instrumentalities  and  facilities  of  shipment  or 
carriage,  irrespective  of  ownership.  Railroad  compa- 
nies are  therefore  answerable  for  what  they  hire  from 
private  car  lines;  but  private  car  owners,  leasing  refrig- 
erator, tank  and  other  cars  to  railroads  and  shippers, 
and  who  operate  stations  on  railroad  lines  for  the  pur- 
pose of  icing  cars  for  which  the  railroads  pay  a  certain 
rate  per  ton,  and  who  furnish  cars  for  the  shipment  of 
perishable  fruits  and  keep  them  iced,  but  have  no  con- 
trol over  the  movement  of  the  cars  they  furnish,  are  not 
common  carriers  within  the  meaning  of  the  Act.  The 
definition  of  "transportation"  includes  such  instrumen- 
talities as  these  car  lines  furnished  to  the  railroads,  but 
the  definition  is  preliminary  to  the  requirement  that  the 
carrier  shall  furnish  them  upon  reasonable  request  and 
reasonable  charges.  The  control  of  the  Commission  over 
private  cars  is  to  be  effected  by  its  control  over  the  car- 
riers that  are  subject  to  the  Act."* 

93.  Industrial  Railways  Case,  32  and  reices  the  cars,  when  set  by 
I.  C.  C.  129.  the    railroads   at   the   icing   plant, 

94.  Ellis  V.  Interstate  Com-  by  filling  the  bunkers  from  the 
merce  Commission,  237  U.  S.  434,  top,  after  which  the  railroads  re- 
59  L.  Ed.  1036,  35  Sup.  Ct.  645,  in  move  the  cars.  The  railroads  pay 
which  the  Court  said:  "The  Ar-  a  certain  rate  per  ton,  and  charge 
mour  Car  Lines  is  a  New  Jersey  the  shipper  according  to  tariffs  on 
corporation  that  owns,  manufac-  file  with  the  Commission.  Final- 
tures  and  maintains  refrigerators,  ly  it  furnishes  cars  for  the  ship- 
tank  and  box  cars,  and  that  lets  ment  of  perishable  fruits,  etc.,  and 
these  cars  to  the  railroad  or  to  keeps  them  iced,  the  railroads  pay- 
shippers.  It  also  owns  and  oper-  ing  for  the  same.  It  has  no  ron- 
ates  icing  stations  on  various  lines  trol  over  motive  power  or  over 
of   railway,   and   from   these    ices  the  movement  of  the  cars  that  it 


"§>  107]  Carhikhs  L'^'L)l•;K  Commerce  Act.  241 

§  106.  Common  Carriers  of  Oil  and  Other  Commod- 
ities by  Pipe  Line  Included.  Tiic  Intci-.slale  CoiniiK.Tco 
Act  in  1906  was  amended  so  as  to  include  any  corpora- 
tion or  any  person  or  persons  engaged  in  tlie  transporta- 
tion of  oil  or  other  commodities,  except  water  and  nat- 
ural or  artificial  gas,  by  means  of  pipe  lines  or  partly 
by  pipe  line,  and  partly  ))y  railroad,  or  i)artl>-  l)y  pipe 
line  and  ])artly  by  water,  from  one  state,  territory  or 
district  of  the  I'nited  States  to  any  other  state,  territory 
or  district  of  the  United  States,  or  to  any  foreign  coun- 
try who  shall  l)e  considered  and  held  to  be  common  car- 
riers within  the  meaning  and  purpose  of  the  Act. 

As  the  transportation  of  oil  from  one  state  to 
another  constitutes  interstate  commerce,  those  jiipe  line 
companies  which  hold  themselves  out  as  common  car- 
riers of  oil  or  other  commodities,  except  water  and  gas, 
by  pipe  line  are  subject  to  the  jurisdiction  of  the  Com- 
mission. The  fact  that  the  \)\\)Q  line  was  built  over  a 
privately  acquired  right  of  way  does  not  affect  its 
status,  nor  is  the  interstate  character  of  such  traffic  de- 
stroyed by  placing  the  ownership  of  the  pipe  line  in  a 
different  corporation  in  each  state  through  which  the  oil 
passes  in  transportation,  for  the  question  of  what  is 
commerce  among  the  states  depends  upon  broader  con- 
siderations than  the  time  or  place  w1iei(^  tlie  title 
passes."^ 

§  107.  Pipe  Line  Companies  Transporting  Solely 
Their  Own  Oil,  Common  Carriers,  When.    Tlie  Interstate 

furnishes  as  above,  and  in  short,  garded  as  carriers,  contrary  to  the 

notwithstanding  some  argument  to  truth.     The   control   of  the   Com- 

the  contrary,  is  not  a  common  car-  mission  over  private  cars,  etc.,  is 

rier  subject  to  the  act.     It  is  true  ro  be  effected  by  its  control  over 

that   the   definition   of  transporta-  the  railroads  that   are  subject   to 

tion  in  Sec.  1  of  the  act  includes  the    act.      The    railroads    may    be 

such   instrumentalities  as  the  Ar-  made    answerable    for    what    they 

mour  Car  Lines  lets  to   the   rail-  hire  from  the  Armour  Car  Lines, 

roads.    But  the  definition  is  a  pre-  if  they  would  not  be  otherwise,  but 

limlnary    to    a    requirement    that  that  does  not  affect  the  nature  of 

the  carriers  shall  furnish  them  up-  the  Armour  Car  Lines  itself." 
on  reasonable  request,  not  that  the  95.    In  the  !\Iatter  of  Pipe  Lines, 

owners  and   builders  shall   be   re-  24  I.  C.  C.  1. 

1    l"ontri>I   Carriors   16 


242  Duties  to  Interstate  Shippers.  [^  107 

Commerce  Act  plainly  includes  only  those  corporations 
or  persons  who  are  in  fact  common  carriers  as  dis- 
tingiiishod  from  those  engaged  in  a  private  hnsiness.  A 
person  does  not  become  a  common  carrier  unless  he 
undertakes  to  transport  for  hire  for  those  who  choose  to 
employ  him.  He  must  have  committed  himself  to  serve 
the  public  and  he  is  not  subject  to  legislative  control  as 
a  carrier  unless  he  undertakes  to  carry  goods  for  all 
who  choose  to  employ  him.  His  undertaking  must  be 
public  in  character  so  that  in  case  of  his  refusal  to 
accept  and  carry  the  goods,  lie  will  be  liable  in  an  action 
for  damages. ^^  A  law,  therefore,  which  requires  a  cor- 
poration, engaged  strictly  in  a  private  business,  to  be- 
come a  common  carrier  is  invalid.  For  example,  a 
company  simply  drawing  oil  from  its  own  wells  across 
a  state  line  to  its  own  refinery  for  its  own  use  is  not 
and  cannot  be  declared  a  common  carrier  within  the 
meaning  of  the  statute.^^ 

But  where  pipe  line  companies  are  engaged  in  the 
transportation  of  oil  from  one  state  to  another  for  the 
public  in  general  provided  the  oil  is  sold  to  them  before 
the  transportation  commences,  they  are  common  car- 
riers in  substance  if  not  in  form.  A  common  carrier  in 
fact  cannot  exempt  itself  from  legislative  control  as 
such  by  requiring  all  prospective  shippers  to  sell  the 
commodity  to  it  before  beginning  the  transportation. 
Such  a  device  is  a  most  vicious  kind  of  a  monopoly  and 
does  not  prevent  the  control  of  the  Interstate  Commerce 
Commission  over  such  cases.  After  the  passage  of  the 
amendment  including  pipe  lines,  the  Interstate  Com- 
merce Commission  instituted  a  proceeding  to  determine 
the  status  of  x)ipe  line  companies  throughout  the  coun- 
try."" 

The  Commis.«i()n  held  that  the  obligation  of  a  com- 

96.     Cownie   Glove   Co.   v.   Mer-  97.      United    States   v.    Ohio    Oil 

chants'   Dispatch   Trans.   Co..   130  Co.  234  U.  S.  548,  58  L.  Ed.  1459, 

Iowa  327,  4  L.  R.  A.   (N.  S.)   1060,  34  Sup.  Ct.  957. 

114  Am.   St.  Rep.   419,  106   N.   W  98.    In  the  Matter  of  Pipe  Lines. 

749;    Carpenter  v.  Baltimore  &  O.  24  I.  C.  C.  1. 
R.    Co.,    6    Pennew.    (Del.)    15,    64 
Atl    252. 


'§  107J  Carkieks  Undkr  Commerce  Act.  243 

moil  carrier  was,  by  tlie  Act,  impressed  upon  a  pipe  line 
company  engaged  in  the  transi)ortation  of  oil  in  inter- 
state commerce  although  the  pipe  line  was  Iniilt  over  a 
privately  ac(|uired  right  of  way  and  it  transi)orted  only 
its  own  oil  b}'  pursuing  a  i)olicy  of  refusing  to  receive 
oil  from  other  parties  except  as  a  purchaser  of  such  oil. 
An  order  was  made  re(iuiring  the  o])erators  of  such  iM})e 
lines  to  file  with  the  Commission  schedules  of  their  rates 
and  charges  for  the  transportation  of  oil  in  compliance 
with  the  statute. 

Suits  were  brought  to  annul  this  order  and  the  Com- 
merce Court  held  that  sucli  pipe  lines  so  transporting 
their  own  oil  after  sale,  were,  in  fact,  private,  and  not 
common  carrieis,  and  that,  as  thus  construed,  the  amend- 
ment including  such  pipe  lines  was  invalid  in  that  it 
deprived  them  of  their  property  without  due  process  of 
law.^« 

On  appeal  to  the  national  Supreme  Court,  the  deci- 
sion of  the  Commerce  Court  was  reversed  and  the  order 
of  the  Commission  was  sustained  except  as  to  one  com- 
pany which  carried  only  the  oil  from  its  own  wells  to 
its  own  refinery.^  "Availing  itself  of  its  monopoly  of 
the  means  of  transportation,"  said  the  Court  in  the  case 
cited,  "the  Standard  Oil  Company  refused  through  its 
subordinates  to  carry  any  oil  unless  the  same  was  sold 
to  it  or  to  them  and  through  them  to  it  on  terms  more 
or  less  dictated  by  itself.  In  this  way  it  made  itself 
master  of  the  fields  without  the  necessity  of  owning 
them  and  carried  across  half  the  continent  a  great  sub- 
ject of  international  commerce  coming  from  many  own- 
ers but,  by  the  duress  of  which  the  Standard  Oil  Com- 
pany was  master,  carrying  it  all  as  its  own.  The  main 
question  is  whether  the  act  does  and  constitutionally 
can  a]iply  to  the  several  constituents  that  then  had  been 
united  into  a  single  line,  ''leaking  u})  fust  the  construc- 
tion of  the  statute,  we  think  it  ]^lain  that  it  was  in- 
tended to  reach  the  combination  of  pij)e  lines  that  we 

99.      Prairie    Oil    &    Gas    Co.    v.       Co.,  2:',4  U.  8.  548,  58  L.  Ed.  1459. 
United  States.  204  Fed.  798.  :54  Sup.  Ct.  957. 

1.      United    States    v.    Ohio    Oil 


244  Duties  to  Interstate  Shippees.  [*§  107 

have  described.    The  provisions  of  the  act  are  to  apply 
to  any  person  engaged  in  the  transportation  of  oil  by 
means  of  pipe  lines.     The  words  'who  shall  be  consid- 
ered and  held  to  be  common  carriers  wHthin  the  meaning 
and  purpose  of  this  act'  obviously  are  not  intended  to 
cut  down  the  generality  of  the  previous  declaration  to 
the  meaning  that  only  those  shall  be  held  common  car- 
riers within  the  act  who   were  common  carriers  in  a 
technical  sense,  but  an  injunction  that  those  in  control 
of  pipe  lines  and  engaged  in  the  transportation  of  oil 
shall  be  dealt  with  as  such.     If  the  Standard  Oil  Com- 
pany and  its  cooperating  companies  were  not  so  engaged 
no  one  was.     It  not  only  would  be  a  sacrifice  of  fact  to 
form  but  would  empty  the  act  if  the  carriage  to  the 
seaboard  of  nearly  all  the  oil  east  of  California,  were 
held  not  to  be  transportation  within  its  meaning,  be- 
cause by  the  exercise  of  their  power  the  carriers  im- 
posed as  a  condition  to  the  carriage  a  sale  to   them- 
selves.   As  applied  to  them,  while  the  amendment  does 
not  compel  them  to  continue  in  operation  it  does  re- 
quire them  not  to  continue  except  as  common  carriers. 
That  is  the  plain  meaning  as  has  been  held  with  regard 
to  other  statutes  similarly  framed.    Atlantic  Coast  Line 
R.  E.  Co.  V.  Riverside  Mills,  219  U.   S.  186,  195,  203. 
Its  evident  purpose  was  to  bring  within  its  scope  pipe 
lines  that  although  not  technically  common  carriers  yet 
were  carrying  all  oil  offered,  if  only  the  offerers  would 
sell  at  their  price.     The   only  matter  requiring  niucli 
consideration  is  the  constitutionality  of  the  act.     That 
the  transportation  is   commerce   among  the   States  we 
think  clear.     That  conception  cannot  be  made  wholly 
dependent  upon  technical  questions  of  title,  and  the  fact 
that  the  oils  transported  belonged  to  the  owner  of  the 
pipe  line  is  not  conclusive  against  the  transportation 
being  such  commerce.    Rearick  v.  Pennsylvania,  203  U. 
S.   507,  512.     See  Texas  &  New  Orleans  R.  R.   Co.  v. 
Sabine  Tram.  Co.,  227  U.  S.  111.    The  situation  that  we 
have  described  would  make  it  illusory  to  deny  the  title 
of  commerce  to  such  transportation,  beginning  in  pur- 
chase and   ending  in   sale,   for  the   same   reasons   that 


§  108]  Carriers  Under  Commerce  Act.  245 

make  it  transixjitation  witliin  tlie  act,  Tlic  control  of 
Congress  over  coinnuMXM;  among  the  Slates  cannot  he 
made  a  means  of  exercising  powers  not  entrusted  to  it 
by  the  Constitution,  but  it  may  require  those  who  are 
common  carriers  in  suljstance  to  become  so  in  form.  So 
far  as  the  statute  contemplates  future  pipe  lines  and 
prescribes  the  conditions  upon  which  they  may  be  estab- 
lished there  can  be  no  doubt  that  it  is  valid.  So  the 
objection  is  narrowed  to  the  fact  that  it  a])plies  to  lines 
already  engaged  in  transportation.  But,  as  we  already 
have  intimated,  those  lines  that  we  are  considering  are 
common  carriers  now  in  everything  but  form.  They 
carry  everybody's  oil  to  a  market,  although  they  com- 
l)el  outsiders  to  sell  it  before  taking  it  into  their  pipes. 
The  answer  to  their  objection  is  not  that  they  may  give 
up  the  business,  but  that,  as  applied  to  them,  the  statute 
practically  means  no  more  than  they  must  give  up  re- 
quiring a  sale  to  themselves  before  carrying  the  oil  that 
they  now  receive.  The  whole  case  is  that  the  appellees 
if  they  carry  must  do  it  in  a  way  that  tliey  do  not  like. 
There  is  no  taking  and  it  does  not  become  necessary  to 
consider  how  far  Congress  could  subject  them  to  pecu- 
niary loss  without  compensation  in  order  to  accomplish 
the  end  in  view.  Hoke  v.  United  States,  227  U.  S.  308, 
323.    Lottery  Case,  188  U.  S.  321,  357." 

§  108.  Assumption  of  National  Control  over  Inter- 
state and  Foreign  Cable,  Telephone  and  Telegraph  Com- 
panies. Intercourse  between  the  states  by  telephone  and 
telegraph  constitutes  interstate  commerce.-    Companies 

2.    United    States.     Western    U.  162  U.  S.  650,  40  L.  Ed.  1105.  16 

Tel.  Co.  V.  Commercial  Milling  Co.,  Sup.  Ct.  934;    Primrose  v.  Western 

218  U.  S.  406,  54  L.  Ed.  10S8,  31  U.  Tel.  Co.,  154  U.  S.  1,  38  L.  Ed. 

Sup.  Ct.   59,  36  L.  R.   A.    (N.   S.)  883,  14  Sup.  Ct.  1098;    Postal  Tel. 

220,  21  Ann.  Cas.  815;    Chesapeake  Cable    Co.    v.    Charleston,    153    U. 

&  P.  Tel.  Co.  V.  Manning.   186  U.  S.  692.  :?8  L.  Ed.  871,  14  Sup.  Ct. 

S.  238.  46  L.  Ed.  1144,  22  Sup.  Ct.  1094;    St.  Louis  v.  Western  U.  Tel. 

881;     Richmond   v.   Southern   Bell  Co.,  148  U.  S.  92,  37  L.  Ed.  380,  13 

Telephone  &  Telegraph  Co.,  174  U.  Sup.  Ct.  485;    Western  U.  Tel.  Co. 

S.  761,  43  L.  Ed.  1162,  19  Sup.  Ct.  v.   Seay,  132  U.  S.  472,  33  L.  Ed. 

778;    Western  U.  Tel.  Co.  V.  James,  409,    10    Sup.   Ct.    161;     Leloup    v. 


24G 


Duties  to  Interstate  Shippers. 


[§  108 


engaged  in  the  telegraph  and  telephone  business,  whose 
lines  extend  from  one  state  to  another,  are  engaged  in 
interstate  commerce,  and  messages  passing  from  one 
state  to  another  constitutes  such  commerce.  Such  com- 
panies and  messages,  therefore,  may  be  regulated  by 
Congress.^ 

The  amendment  of  1910  to  the  Interstate  Commerce 
Act  extended  its  provisions  to  telegraph,  telephone  and 
cable  companies  (whether  wire  or  wireless)  engaged  in 
sending  messages  from  one  state,  territory,  or  district 
of  the  United  States,  to  any  other  state,  territory  or 
district  of  the  United  States,  or  to  any  foreign  country, 
and  the  statute  declared  them  to  be  common  carriers 
within  the  meaning  and  purpose  of  the  act;  but  pro- 
vided that  messages  by  telegraph,  telephone   or  cable 


Port  of  Mobile,  127  U.  S.  640,  32 
L.  Ed.  311,  8  Sup.  Ct.  1380;  Rat- 
terman  v.  Western  U.  Tel.  Co.,  127 
U.  S.  411,  32  L.  Ed.  229,  8  Sup.  Ct. 
1127;  Western  U.  Tel.  Co.  v.  Pen- 
dleton, 122  U.  S.  347,  30  L.  Ed. 
1187,  7  Sup.  Ct.  1126;  Western  U. 
Tel.  Co.  V.  Texas,  105  U.  S.  460, 
26  L.  Ed.  1067;  Pensacola  Tel.  Co. 
V.  Western  U.  Tel.  Co.,  96  U.  S. 
1,  24  L.  Ed.  708. 

Maine.  Haskell  Implement  & 
Seed  Co.  v.  Postal  Tel. -Cable  Co., 
114  Me.  277,  96  Atl.  219. 

Massachusetts.  Western  U.  Tel. 
Co.  V.  Foster,  224  Mass.  365,  113 
N.  E.  192. 

■  Missouri.  Jacobs  v.  Western  U. 
Tel.  Co.,  196  Mo.  App.  300,  196  S. 
W.  31;  Poor  v.  Western  U.  Tel. 
Co.,  196  Mo.  App.  557,  196  S.  W. 
28;  Reed  v.  Western  U.  Tel.  Co., 
56  Mo.  App.  168. 

Nebraska.  Western  U.  Tel.  Co. 
V.  City  of  Fremont,  43  Neb.  499,  26 
L.  R.  A.  706,  61  N.  W.  724. 

New  Jersey.  Ames  v  Kirby,  71 
N.  J.  L.  442,  59  Atl.  558. 

Virginia.  Western  U.  Tel.  Co. 
V.   Boiling,   120   Va.   413,   91   S.   E. 


154;  Western  U.  Tel.  Co.  v.  Biliso- 
ly,  116  Va.  562,  82  S.  E.  91;  West- 
ern U.  Tel.  Co.  V.  Hughes,  104  Va. 
240,  51  S.  E.  225;  Western  U.  Tel. 
Co.  V.  Tyler,  90  Va.  297,  44  Am. 
St.  Rep.  910,  18  S.  E.  280. 

3.  United  States.  Western  U. 
Tel.  Co.  V.  Brown,  234  U.  S.  542, 
58  L.  Ed.  1457,  34  Sup.  Ct.  955,  5 
N.  C.  C.  A.  1024;  Western  U.  Tel. 
Co.  V.  Crovo,  220  U.  S.  364,  55  L. 
Ed.  498,  31  Sup.  Ct.  399;  Western 
U.  Tel.  Co.  V.  Commercial  Milling 
Co.,  218  U.  S.  406,  54  L.  Ed.  1088. 
31  Sup.  Ct.  59,  36  L.  R.  A.  (N.  S.) 
220.  21  Ann.  Cas.  815;  Western  U. 
Tel.  Co.  V.  Pendleton,  122  U.  3. 
347,  30  L.  Ed.  1187,  7  Sup.  Ct.  1126; 
Western  U.  Tel.  Co.  v.  State,  105 
U.  S.  460,  26  L.  Ed.  1067. 

Arkansas.  Western  U.  Tel.  Co. 
V.  Stewart,  120  Ark.  631,  179  S. 
W.  813;  Western  U.  Tel.  Co.  v. 
Johnson,  115  Ark.  564,  171  S.  W. 
859;  Western  U.  Tel.  Co.  v.  Comp- 
ton,  114  Ark.  193,  169  S.  W.  946. 

Mississippi.  Western  U.  Tel.  Co. 
V.  Showers,  112  Miss.  411,  73  So. 
276. 


§  108]  Carriers  Under  Commerce  Act.  247 

subject  to  the  provisions  of  the  act,  mij^ht  bo  classified 
into  day,  night,  repeated,  unrei)eated,  letter,  commer- 
cial, press,  government  and  such  other  classes  as  were 
just  and  reasonable,  and  different  rates  might  be  charged 
for  the  different  classes  of  messages,  and  provided 
further  that  nothing  in  the  act  should  be  construed  to 
prevent  telephone,  tf^legraph  and  cable  companies  from 
entering  into  contracts  with  common  carriers  for  the  ex- 
change of  service. 

Since  the  inclusion  of  these  companies  within  the 
exclusive  jurisdiction  of  the  Interstate  Commerce  Com- 
mission as  to  all  interstate  messages,  the  reasonableness 
of  rules  adopted  by  them  as  to  interstate  messages  is 
a  question  which  must  be  raised  and  determined  pri- 
marily by  the  Interstate  Commerce  Commission  before 
it  can  be  considered  by  the  courts.*  Messages  between 
points  in  the  same  state,  but  passing  in  transmission  in 
part  over  the  territory  of  another  state,  constitute  inter- 
state commerce  under  analogous  rulings  as  to  interstate 
shipments  of  goods,^  though  two  state  courts  have  held 

Oklahoma.     Western  U.  Tel.  Co.  son,  115  Ark.  564,  171  S.  W.  859; 

V.  Kaufman,  Okla.  ,  162  Western  U.   Tel.  Co.   v.  Compton, 

Pac.  708;    Western  U.  Tel.  Co.  v.  114  Ark.  193,  169  S.  W.  946. 

Bank  of  Spencer,  Okla.  ,  Maine.        Haskell  Implement  & 

156  Pac.  1175.  Seed  Co.  v.  Postal  Tel.-Cable  Co., 

Texas.     Western   U.   Tel.   Co.  v.  114  Me.  277,  96  Atl.  219. 

Smith,  Tex.   Civ.   App.  ,  Missouri.     Jacobs  v.  Western  U. 

188S.  W.  702;    Western  U.  Tel.  Co.  Tel.    Co.,    196    Mo.    App.    300,    196 

V.    Schoonmaker,    Tex.    Civ.  S.  W.  31. 

App.  ,  181  S.  W.  263.  North  Carolina.  iVIeadows  v.  Pos- 

Virginia.    Western  U.  Tel.  Co.  v.  tal  Telegraph  &  Cable  Co.,  173  N. 

Boiling.    120    Va.    413,    91    S.    E.  C.  240,  91  S.  E.  1009. 

154;    Western  U.  Tel.  Co.  v.  Biliso-  Oklahoma.     Western  U.  Tel.  Co. 

ly,  116  Va.  562,  82  S.  E.  91.  v.   Orr,  Okla.   ,  158   Pac. 

4.     United     States.     Gardner  v.  1139. 

Western  U.  Tel.  Co.,  145  C.  C.  A.  Virginia.     Western    U.    Tel.    Co. 

399,  231  Fed.  405;    H.  B.  Williams.  v.   Boiling,   120   Va.  413,   91   S.   E. 

Inc.,  V.   Western   U.   Tel.  Co.,   203  154. 

Fed.  140.  Wisconsin.    Durre  v.  Western  U. 

Arkansas.     Western  U.  Tel.  Co.  Tel.  Co.,  165  Wis.  190.  161  N.  W. 

V.    Holder.    117    Ark.    210,    174    S.  755. 

W.  552:  Western  U.  Tel.  Co.  v.  5.  Hanley  v.  Kansas  City  South- 
Simpson,  117  Ark.  156.  174  S.  W.  ern  R.  Co.,  187  U.  S.  617,  47  L. 
232;    Western  U.  Tel.  Co.  v.  John-  Ed.    333,    23    Sup.    Ct.    214;     Wes- 


248 


Duties  to  Interstate  Shippers. 


[§  108 


that   such   telegrams  do  not  constitute   interstate  mes- 
sages.*' 

As  the  Interstate  Commerce  Commission  has  ac- 
quired control  of  the  interstate  business  of  telegraph, 
telephone  and  cable  companies,  all  state  laws  penalizing 
such  carriers  for  negligence  for  a  failure  to  deliver  such 
messages,  are  invalid.'  A  limitation  of  $50.00  as  the 
company's  liability  for  negligence  for  failure  to  deliver 
an  interstate  message  has  been  held  to  be  valid  since  the 
1910  amendment,  for  the  reason  that  such  a  limitation 
was  fixed  by  the  company's  tariff  tiled  with  the  Inter- 
state Commerce  Commission.'  A  stipulation  on  the  back 
of  an  interstate  telegram  that  the  company  shall  not  be 
liable  for  mistakes  in  an  unrepeated  message  beyond  the 
amount  received  for  sending  the  same,  is  binding  upon 
state  courts  since  the  assumption  of  control  over  tele- 
o-raph  companies  by  the  Interstate  Commerce  Commis- 
sion.**     But  the  Texas  Supreme  Court  has  held  that  a 


tern  U.  Tel.  Co.  v.  Kaufman,  

Okla.  162  Pac.  708. 

"Upon  principle  "we  cannot  con- 
ceive how  any  different  doctrine 
can  be  applied  to  telegraphic  mes- 
sages between  points  within  the 
state,  which  in  the  course  of  their 
transmission  pass  without  the 
state  into  any  other  state  or  the 
district  of  Columbia.  We  conclude, 
therefore,  that  under  the  authori- 
ties the  message  involved  herein 
was  interstate  commerce."  Pren- 
tis,  J.,  in  Western  U.  Tel.  Co.  v. 

Boiling,  Va.   ,    91    S.    3. 

154. 

6.  Leavel  v.  Western  U.  Tel.  Co., 
116  N.  C.  211,  27  L.  R.  A.  483,  47 
Am.  St.  Rep.  798,  21  S.  E.  391; 
Railroad  Com'rs  v.  Western  U.  Tel. 
Co.,  113  N.  C.  213,  22  L.  R.  A.  570; 
18  S.  E.  389;  Western  U.  Tel.  Co. 
v.  Hughes.  104  Va.  240,  51  S.  E. 
225;  Western  U.  Tel.  Co.  v.  Rey- 
nolds, 100  Va.  459,  93  Am.  St.  Rep. 
971,  41  S.  E.  856.  The  courts  in 
these  cases  followed  the  case  of 


Lehigh  Valley  R.  Co.  v.  Pennsyl- 
vania, 145  U.  S.  192,  36  L.  Ed.  672, 
12  Sup.  Ct.  806. 

7.  Arkansas.  Western  U.  Tel.  Co. 
V.  Simpson,  117  Ark.  156  S.  W. 
232. 

Kansas.  Kirsch  v.  Postal  Tel. 
Cable  Co.,  100  Kan.  250,  164  Pac. 
267. 

Oklahoma.     Western  U.  Tel.  Co. 

v.  Kaufman,  Okla.  ,  162 

Pac.   708. 

Texas.     Western   U.   Tel.   Co.   v. 

Smith,  Tex.   Civ.  App.  r, 

188  S.  W.  702. 

Virginia.  Western  U.  Tel.  Co.  v. 
First  Nat.  Bank  of  Berryville,  116 
Va.  1009,  83  S.  E.  424;  Western 
U.  Tel.  Co.  v.  Bilisoly,  116  Va.  562, 
82  S.  E.  91. 

8.  Western  U.  Tel.  Co.  v.  Comp- 
ton,  114  Ark.  193,  169  S.  W.  946; 
Western  U.  Tel.  Co.  v.  Showers, 
112  Miss.  411,  73  So.  276. 

9.  Poor  V.  Western  U.  Tel.  Co., 
196  Mo.  App.  557,  196  S.  W.  28. 


§  10« 


Carriers  Undkr  Commerce  Act. 


249 


stipulation  limiting  liability  for  negligence  to  $50,00  in 
the  tiansmission  and  delivery  of  a  telegram,  was  void 
even  as  to  interstate  messages,  and  that  a  recovery  may 
be  permitted  for  mental  anguish  under  a  state  statute 
for  a  failure  Jto  deliver  an  interstate;  message/"  The 
decision  of  the  Texas  court  in  itcnnittiiig  a  recovery  for 
mental  anguisli  due  to  a  failnn;  to  deliver  an  interstate 
telegram,  seems  to  be  in  conflict  with  a  controlling 
decision  of  the  national  Supreme  Court/^  Whetlier  the 
provision  on  the  back  of  a  n\essage  limiting  the  amount 
of  liability  to  $50.00  is  reasonable  or  unreasonable,  is  a 
question  that  must  primarily  be  submitted  to  the  Inter- 
state Commerce  Commission.'-  Similar  provisions  in 
tariifs  and  contracts  of  railroad  and  exjiress  companies 
have  been  held  to  be  valid  as  to  interstate  shipments 
of  goods.^^  A  Missouri  court  lield  that  the  rule  per- 
mitting a  railroad  company  to  recover  the  freight  rate 
in  its  tariff  filed  with  the  Interstate  Commerce  Commis- 
sion though  the  agent  erroneously  quoted  a  lower  rate, 


10.  Western  U.  Tel.  Co.  v. 
Bailey,  108  Tex.  427,  19G  S.  W. 
516.  The  same  case  was  before 
the  Texas  Court  of  Civil  Appeals 
and  is  reported  in  171  S.  W.  839  on 
the  first  appeal,  and  in  184  S.  W. 
519  on  the  second  appeal. 

Damages  for  mental  anguish  due 
to  a  negligent  failure  to  transmit 
and  deliver  a  telegram  from  a 
point  in  one  state  to  a  point  in  an- 
other, are  not  recoverable  since 
the  amendment  of  1910  to  the  In- 
terstate Commerce  Act.     Norris  v. 

Western   U.   Tel.   Co.,   N.   C. 

,  93  S.  E.  465. 

11.  Western  U.  Tel.  Co.  v. 
Brown,  234  U.  S.  542,  58  L.  Ed. 
1457,  34  Sup.  Ct.  955,  5  N.  C.  C.  A. 
1024.  See  also  Western  U.  Tel. 
Co.  V.  Stewart,  120  Ark.  631,  179 
S  W.  813;  Western  U.  Tel.  Co.  v. 
Johnson.  115  Ark.  564,  171  S.  W. 
859;  Jacobs  v.  Western  U.  Tel.  Co., 
196  Mo.  App.  300,  19G  S.  W.  31; 
Western  U.  Tel.  Co.  v.  Boiling,  120 
Va.  413,  91  S.  E.  154. 


12.  Gardner  v.  Western  U.  Tel. 
Co.,  145  C.  C.  A.  399,  231  Fed.  405; 
H.  B.  Williams,  Inc.,  v.  Western 
U.  Tel.  Co.,  203  Fed.  140. 

13.  Cleveland,  C,  C.  &  St.  L. 
R.  Co.  v.  Dettlebach,  239  U.  S.  588. 
60  L.  Ed.  453,  36  Sup.  Ct.  177;  Atch- 
ison, T.  &  S.  F.  R.  Co.  v.  Robin- 
son, 233  U.  S.  173,  58  L.  Ed.  901, 
34  Sup.  Ct.  556;  Boston  &  M.  R. 
Co.  v.  Hooker,  233  U.  S.  97,  58  L. 
Ed.  868,  34  Sup.  Ct.  526.  L.  R.  A. 
1915B  450,  Ann.  Cas.  1915D  953; 
Missouri,  K.  &  T.  R.  Co.  v.  Harri- 
man,  227  U.  S.  657,  57  L.  Ed.  690, 
33  Sup.  Ct.  397;  Kansas  City 
Southern  R.  Co.  v.  Carl.  227  U.  S. 
6;i9,  57  L.  Ed.  683,  33  Sup.  Ct.  391: 
Wells.  Fargo  &  Co.  v.  Neiman-Mar- 
cus  Co,  227  U.  S.  469,  57  L.  Ed.  600, 
33  Sup.  Ct.  267;  Adams  Exp.  Co. 
V  Croninger,  226  U.  S.  491,  57  L. 
Ed.  314,  33  Sup.  Ct.  148.  44  L.  R. 
9.    (N.    S.)    257. 


250  Duties  to  Interstate  Shippeus.  [§  108 

did  not  apply  to  the  cliarg-es  made  by  an  operator  for  a 
telei>raph  company;  but  the  message  before  the  court  in 
tliat  case  was  an  intrastate  telegram." 

The  Interstate  Commerce  Commission  refused  to 
assume  jurisdiction  of  a  complaint  of  undue  discrimina- 
tion against  a  local  telephone  company  at  Pittsburgh,  Pa., 
for  the  reason  that  the  messages  involved  were  solely 
intrastate  in  character."  In  another  case,  the  Commis- 
sion held  that  the  rates  charged  by  a  telegraph  com- 
pany for  messages  between  New  York  and  San  Francisco 
and  by  cable  from  New  York  to  England  were  reason- 
able and  nondiscriminatory.^*^  It  is  the  duty  of  tele- 
graph companies,  the  Commission  has  held,  to  distin- 
guish the  classes  of  messages  mentioned  in  the  statute, 
and  to  adopt  just  and  reasonable  rules  relating  there- 
to.^^ 

The  new  duties  and  liabilities  of  telegraph  com- 
panies as  to  interstate  messages  since  the  assumption  of 
federal  control,  were  well  and  clearly  stated  by  one 
court,  as  follows:^*  "The  suit  is  based  upon  the  viola- 
tion of  defendant's  public  duty  to  correctly  transmit 
and  deliver  the  message.  This  public  duty,  arising  upon 
the  creation  of  the  contract  of  transmission,  the  defend- 
ant owed  the  sendee,  even  though  the  latter  was  not  an 
immediate  party  to  the  contract.  Hence  plaintiif,  as 
sendee,  has  a  right  of  action  based  upon  the  violation 
of  that  public  duty.  Western  Union  Tel.  Co.  v.  Burris, 
179  Fed.  92,  102  C.  C.  A.  386;  State  Bank  of  Commerce 
V.  Western  Union  Tel.  Co.,  19  N.  M.  211,  142  Pac.  156, 
L.  E.  A.  1915A,  120;  Bailey  v.  Western  Union  Tel.  Co., 
227  Pa.  522,  76  Atl.  736,  43  L.  R.  A.  (N.  S.)  502,  19  Ann. 
Cas.  895;  Western  Union  Tel.  Co.  v.  Holder,  117  Ark. 
210,  174  S.  W.  552;  Eureka  Cotton  Mills  Co.  v.  Western 

14.  Higbee  v.  Western   U.   Tel.  17.      White    v.   Western    U.    Tel. 
Co.,   179  Wo.  App.   195,  16G   S.  W.       Co.,  33  I.  C.  C.  500. 

825.  18.    Trimble,  J.,  in  Poor  v.  West- 

15.  Local     Commercial     Tele-      ern  U.  Tel.  Co.,  196  Mo.  App.  557. 
phone  Service  in  Pittsburgh,  Penn-       196   S.  W.  28. 

sylvania,   27    I.   C.   C.    622. 

16.    White  V.  Western  U.  Tel.  Co., 
33  I.  C.  C.  500. 


<§>  ]()SJ  ( 'ahhikiss  Tn'mku  Commkhck  Act.  -')i 

Uu'um  To).  Co.,  88  S.  ('.  498,  70  S.  E.  1040,  Ann.  Cas. 
li)12(),  1273;  Woslorn  Tnion  Tel.  Co.  v.  Jackson  l^umbor 
Co.,  187  Ala.  (LM),  (15  Soulli  962;  Western  Union  Tel.  Co. 
V.  Commercial  I^Iilliim-  Co.,  218  U.  S.  406,  420,  :U  Snj). 
Ct.  59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.)  220,  21  Ann. 
Cas.  815.  The  telegram,  bein^  from  a  point  in  Kansas  to 
a  point  in  Missouri,  was  an  interstate  message,  and  its 
transmission  was  an  act  of  interstate  commerce.  West- 
ern Union  Tel.  Co.  v.  Texas,  105  U.  S.  460,  26  U.  Ed. 
1067;  Western  Union  Tel.  Co.  v.  Pendleton,  122  V.  S. 
347,  7  Snpt.  Ct.  1126,  30  T..  Ed.  1187.  Section  7  of  the 
Act  of  Congress  of  June  18,  1910  (36  Stats.  L.  544,  c. 
309;  Fed.  Stats.  Ann.  1912,  vol.  1,  p.  Ill  (U.  S.  Comp. 
St.  1916,  sec.  8563),  amending  section  1  of  the  original 
Interstate  Commerce  Act  (24  Stats.  L.  379,  c.  104;  3 
Fed.  Stats.  Ann.  809),  as  amended  by  the  Act  of  June  29, 
1906  (34  Stats.  L.  584,  c.  3591;  Fed.  Stats.  Ann.  1909 
Supp.  p.  255),  known  as  the  'Hepburn  Act'  with  the 
'Carmack  A^meudment'  thereto,  declares  that  telegrai)h 
companies  engaged  in  sending  messages  from  one  state 
to  another  state  'shall  be  considered  and  held  to  be 
common  carriers  witiiin  the  meaning  and  purpose  of 
this  act,'  i.  e.,  within  the  meaning  and  purpose  of  the 
entire  Interstate  Commerce  Ijaw  as  it  then  existed.  Be- 
ing therefore  a  common  carrier  within  the  meaning  of 
the  Interstate  Commerce  Statutes,  and  engaged  in  inter- 
state commerce  with  respect  to  the  particular  message 
in  controversy,  the  defendant  telegraph  company  is  sub- 
ject to  a7id  governed  by  the  federal  law  as  ex])ounded 
and  a]i]iliod  by  tlic  federal  courts  to  the  exclusion  of  nil 
state  laws  and  decisions.  Undoubtedly,  it  is  well  estab- 
lished that  the  liability  of  common  carriers  of  ]n-operty, 
for  any  violation  of  their  public  duty  in  interstate  ship- 
ments or  "carriage,  is  governed  wholly  by  the  federal 
statutes  relating  thereto  and  by  the  rules  of  decision 
observed  by  the  federal  courts  in  construing  such  stat- 
utes and  in  ai^jilying  the  general  principles  of  law  to 
the  questions  of  liability.  This  has  been  decided  so 
frequently  of  late  years  that  it  is  hardly  necessary  to 
cite   even    a   few    of   the   inanv    cases   aniKMincing   that 


252  Duties  to  Interstate  Siitppees.  [^  108 

doctrine.  Adams  Express  Co.  v.  Croninger,  226  U.  S. 
491,  33  Sup.  Ct.  148,  57  L.  Ed.  814,  44  L.  R.  A.  (N.  8.) 
257;  Missouri,  etc.,  R.  Co.  v.  Harriman,  227  U.  S.  657, 
33  Sup.  Ct.  397,  57  L.  Ed.  690;  Boston  &  Maine  R.  Co. 
V.  Hooker,  233  U.  S.  97,  34  Sup.  Ct.  526,  58  L.  Ed.  868, 
L.  R.  A.  1915B,  450,  Ann.  Cas.  1915D,  593;  Hamilton 
V.  Chicago,  etc.,  R.  Co.,  177  Mo.  App.  145,  164  S.  W. 
248;  Kent  v.  Chicago,  etc.,  R.  Co.,  189  Mo.  App.  424,  176 
S.  W.  1105.  But  plaintiff  contends  that  Congress  has 
not  legislated  upon  the  subject  of  the  liability  of  tele- 
graph companies  nor  upon  the  measure  of  damages 
governing  in  a  suit  in  tort,  and  that  therefore  such 
matters  are  not  controlled  by  federal  legislation  and 
rules  of  decision.  It  is  true,  the  Carmack  Amendment 
to  the  Hepburn  Act  dealt  with  the  liability  of  common 
carriers  transporting  property.  And  it  is  also  true  that 
section  6  of  the  Commerce  Act  (U.  S.  Comp.  St.  1916, 
sec.  8569),  requiring  common  carrires  subject  to  the  pro- 
visions of  said  act  to  tile  with  the  Interstate  Commerce 
Commission  schedules  of  its  rates,  fares,  and  charges  for 
the  transportation  of  passengers  and  property,  is  held 
not  to  applv  to  telegraph  campanies.  25  An.  Rep.  I.  C. 
C.  1911,  p.  5;  Conf.  Rul.  No.  305.  But  sections  1,  3,  15, 
and  20  of  the  Interstate  Commerce  Law  do  apply  to 
such  companies.  Section  1,  as  stated  before,  makes  the 
act  applicable  to  telegraph  companies  engaged  in  trans- 
mitting messages  from  one  state  to  another,  and  requires 
that  'all  charges  for  services  rendered  shall  be  just  and 
reasonable,  and  all  unjust  and  unreasonable  charges  are 
declared  to  bf  unlawful;  and  it  further  provides  that 
messages  'may  be  clasified  into  day,  night,  repeated, 
unrepeated,  letter,  commercial,  press,  government,  and 
such  other  classes  as  are  just  and  reasonable,  and  differ- 
ent rates  may  be  charged  for  the  different  classes  of  mes- 
sages.' Section  3  provides  for  uniformity  of  charges  for 
the  different  classes  of  service  by  making  it  unlawful  to 
give  preferences  or  advantages  in  any  respect  whatso- 
ever. Section  15  provides  that  upon  complaint  being 
made  to  the  Interstate  Commerce  Commission  that  any 
rate  or  classification,  regulation,  or  practice  whatsoever 


<§.  108]  Carriers  Under  Commerce  Act.  253 

of  common  carriers  subject  to  tlie  act,  including  tele- 
graph companies,  the  commission  sliall  have  power  to 
declare  what  rate,  or  i)ractice,  or  regulation  is  reason- 
able, and  to  foil)id  those  found  to  be  unjust,  and  to  re- 
(|uire  the  c()mi)anies  to  adopt  the  one  i)i'escribed.  Sec- 
tion "20  also  covers  the  matter  of  making  reports  and 
keeping  accounts.  The  Commerce  Commission  in  its 
24th.  An.  Rep.  p.  82,  says:  'The  administration  of  the 
twentieth  section  of  the  Act  to  regulate  commerce,  so 
far  as  telegraph  comi)anies  are  concerned,  gives  rise  to. 
no  very  serious  dii^culty.'  It  is  therefore  apparent  that 
the  interstate  commerce  statutes  clearly  bring  inter- 
state telegraph  companies  within  the  terms  and  subject 
to  all  the  provisions  of  the  Interstate  Commerce  Law  so 
far  as  applicable  thereto;  and  that  such  companies  are 
allowed  the  privilege  of  making  their  rates,  classifica- 
tions, and  charges  subject  to  the  power  of  the  Interstate 
Commerce  Commission  to  revise  them  upon  complaint, 
and  subject  to  the  law's  requirement  that  they  shall  be 
reasonable  and  uniform  for  the  same  service  and  class- 
ification (White  &  Co.  V.  Western  Union  Tel.  Co.,  33 
Interst.  Com.  Com'n,  R.  500,  which  was  duly  offered  in 
evidence  and  is  shown  in  the  abstract).  So  that  the 
above-named  federal  laws  constitute  an  assertion  of  the 
power  of  Congress  over  the  subject  of  interstate  tele- 
grams and  the  duties  of  companies  engaged  in  trans- 
mitting them.  And  this  assertion  of  power  over  them 
expressly  provides  for  imiformity  of  rate,  of  classifica- 
tion, and  of  service;  and  necessarily  of  responsilnlity 
therefor.  In  so  doing,  state  action  and  rules  are  ex- 
cluded. These  principles  are  clearly  announced  in  and 
deducible  from  the  cases  of  Atchison,  etc.  R.  Co.  v. 
Harold,  241  U.  S.  371,  36  Sup.  Ct.  665,  60  L.  Ed.  1050; 
Southern  Railway  Co.  v.  Prescott,  240  U.  S.  632,  36  Sup. 
Ct.  469,  60  L.  Ed.  836.  See,  also.  Seaboard  Air  Line  Ry. 
Co.  V.  Horton,  233  U.  S.  492,  34  Suj).  Ct.  635,  58  L.  Ed. 
1062,  L.  R.  A.  1915C,  1  Ann.  Cas.  1915B,  475;  Cleveland, 
etc.,  R.  Co.  V.  Dettlebach,  239  U.  S.  588,  36  Sup.  Ct.  177, 
60  L.  Ed.  453;  Southern  Ry.  Co.  v.  Reid,  222  U.  S.  424, 
36  Sup.  Ct.  140,  56  L.  Ed.  257.     From  all  of  which  it 


254  Duties  to  Inteestatk  Siiippeks.  [§  108 

follows  that  the  rnlo  of  decision  luTetoforo  in  force  in 
this  state  respecting  the  force  and  effect  of  provisions 
in  tlie  contract  by  which  a  message  is  transmitted  are 
no  longer  controlling  with  respect  to  interstate  mes- 
sages. They  are  to  be  given  tlie  effect  accorded  by  the 
federal  laws  and  decisions.  Gardner  v.  Western  Union 
Tel.  Co.,  231  Fed.  405,  145  C.  C.  A.  399;  Western  Union 
Tel.  Co.  V.  Brown,  234  U.  S.  542,  34  Sup.  Ct.  955,  58  L. 
Ed.  1457;  Haskell  Implement,  etc.,  Co.  v.  Postal  Tel., 
.etc.  Co.,  114  Me.  277,  96  Atl.  219;  Western  Union  Tel. 
Co.  V.  Bank  of  Spencer  (Old.)  156  Pac.  1175;  Western 
Union  v.  Bilisoly,  116  Va.  562,  82  S.  E.  91;  Western 
Union  Tel.  Co.  v.  First  National  Bank  of  Berryville,  116 
Va.  1009,  83  S.  E.  424;  Durre  v.  Western  Union  Tel.  Co. 
(Wis.)  161  N.  W.  755;  Meadows  v.  Postal,  etc.,  Co.  (N. 
C.)  91  S.  E.  1009;  Kirsch  v.  Postal  Tel.  Cable  Co.  (Kan.) 
164  Pac.  267.  The  message,  an  order  to  buy,  was 
changed  in  an  important  particular,  and,  since  every- 
thing surrounding  the  change  is  wholly  within  the 
knowledge  of  the  company  and  it  has  not  seen  fit  to 
throw  any  light  upon  the  matter,  the  proof  is  sufficient 
to  make  out  a  prima  facie  case  of  at  least  the  'ordinary 
negligence'  spoken  of  by  the  federal  courts,  for  which 
the  stipulation  on  the  back  of  the  telegram  limiting  lia- 
bility provides.  Williams  v.  Western  Union  Telegraph 
Co.  "(1).  C.)  203  Fed.  140,  144;  Jones  v.  Western  Union 
Telegraph  Co.  (C.  C.)  18  Fed.  717.  Since  the  case  is 
governed  wholly  by  the  federal  rules  of  decision,  and 
since  they  uphold  the  validity  of  the  stipulations  set  out 
on  the  back  of  the  telegraph  blank  limiting  liabilitv  for 
incorrect  transmission,  plaintiff's  recovery  must  be 
limited  by  the  provision  applicable  thereto.  That  pro- 
vision is  that  the  company  shall  not  be  liable  for  a  mis- 
take in  the  transmission  of  any  unrepeated  message  be- 
yond the  amount  received  for  sending  the  same.  There 
is  here  no  distinction  as  to  whom  such  limitation  shall 
apply,  whether  to  sender  or  sendee.  And  while  the  latter 
is  not  directly  a  party  to  the  contract  for  transmission, 
yet  his  rights  are  drawn  from  and  are  limited  by  that 
contract.     Gardner  v.  Western  Union  Tel.  Co.,  231  Fed. 


§  109]  Cahhiers  Undkh  ('ommkrcf.  Act.  255 

405,  145  0.  0.  A.  391);  Findlav  v.  Western  L'nioii  Tel. 
Co.  (C.  C.)  64  Fed.  459;  Wliitehill  v.  Western  Union 
Tel.  Co.  (C.  C.)  136  Fed.  499;  Western  Union  Tel.  Co. 
V.  Bank  of  Spencer  (Okl.)  156  Pac.  1178;  McGeliee  v. 
Western  Union  Tel.  Co.,  169  Ala.  109,  53  South.  205, 
Ann.  Cas.  1912B,  512.  Nor  is  the  ciuestion  of  the  reason- 
ableness or  of  the  real  purpose  and  effect  of  such  a  limi- 
tation 0})en  to  our  consideration,  since  that  is  a  matter 
for  the  Interstate  Commerce  Commission  to  pass  n])()n. 
Gardner  v.  Western  Union  Tel.  Co.,  231  Fed.  405,  409, 
145  C.  C.  A.  399;  AVilliams  v.  Western  Union  Tel.  Co. 
(D.  C.)  203  Fed.  150;  Texas,  etc.,  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  23  Sup.  Ct.  350,  51  L.  Ed. 
553,  9  Ann.  Cas.  1075;  Baltimore,  etc.,  R.  Co.  v.  U.  S.  ex. 
rel.  Pitcairn  Coal  Co.,  215  U.  S.  481,  30  Sup.  Ct.  164,  54 
L.  Ed.  292;  Boston  &  Maine  R,  Co.  v.  FEooker,  233  U.  S. 
97,  121,  34  Sup.  Ct.  526,  58  L.  Ed.  868,  L.  R.  A.  1915D, 
450,  Ann.  Cas.  19150,  593;  Durre  v.  Western  Union  Tel. 
Co.  (Wis.)  161  N.  W.  755.  However  much  one  may  be 
convinced  that  a  stipulation  limiting  liability  to  the  cost 
of  the  message  is  not  a  limitation  of,  but  an  absolute 
exemption  from,  liability  for  negligence,  nevertheless  the 
case  must  be  determined  according  to  the  rules  of  deci- 
sion laid  down  by  the  federal  courts,  and  they  have  held 
that  such  provision  is  not  an  exemption  from  liability. 
Primrose  v.  Western  Union  Tel.  Co.,  154  U.  S.  1,  16,  14 
Sup.  Ct.  1098,  38  L.  Ed.  883.  And  the  facts  of  the  case 
with  regard  to  the  negligence  shown  make  the  ]U'ovision 
limiting  the  damages  to  the  cost  of  the  message  appli- 
cable under  the  federal  rule.  Haskell,  etc.,  Seed  Co.  v. 
Postal  Union  Tel.  Co.  v.  Simpson,  117  xVrk.  156,  174  S. 
W.  232;  Western  Union  Tel.  Co.  v.  Orr  (Okl.)  158  Pac. 
1139;  Boyce  v.  Western  Union  Tel.  Co.,  119  Va.  14,  89  S. 
E.  106;  Meadows  v.  Postal  Tel.  &  C.  Co.  (N.  C.)  91  S. 
E.  1009." 

§  109.    Independent  Express  Companies  Included  by 
Hepburn  Amendment  of  1906.     ITnder  the  original  act 

exi)ress  business  carried  on  by  a  railrt)ad  conipaiiy  was 


256 


Duties  to  Interstate  Shippers. 


[§  109 


subject  to  the  statute;"  but  independent  express  com- 
panies were  not  subject  to  the  act  until  the  passage  of 
the  amendment  of  1906,^°  when  the  term  "common  car- 
rier" as  used  in  the  act  was  dech^rod  by  the  statute  to 
include  express  companies. 

These  companies  now  stand,  with  reference  to  the 
Act  and  its  several  provisions  and  amendments,  as 
though  they  had  been  mentioned  in  the  original  act. 
AVith  respect  to  all  the  provisions  of  the  statute,  they 
are  in  the  same  attitude  as  railroads  except  in  so  far  as 
the  language  of  the  act  necessarily  excludes  them."^  The 
exercise  of  this  control  by  Congress  over  the  interstate 
business  of  express  companies  invalidates  state  and 
municipal  regulations  relating  thereto.-^  Joint  stock 
associations  conducting  an  interstate  express  business 
are  within  the  purview  of  the  statute  and  are  subject  to 
prosecution  under  Section  10  of  the  act  prohibiting  the 
collection  of  any  sums  in  excess  of  the  scheduled  rates 
filed  with  the  Interstate  Commerce  Commission.^^ 


19.  Re  Express  Companies,  1 
I.  C.  R.  677. 

20.  Southern  Indiana  Exp.  Co. 
V.  United  States  Express  Co.,  88 
Fed.  659,  affirmed  in  35  C.  C.  A. 
172,  92  Fed.  1022.  United  States 
V.  Morsman,  42  Fed.  448. 

21.  United  States  v.  Wells-Far- 
go  Exp.  Co.,  161  Fed.  606:  Kindel 
V.  Adams  Exp.  Co.,  13  I.  C.  C.  475. 

22.  Barrett  v.  New  York,  232 
U.  S.  14,  58  L.  Ed.  483,  34  Sup.  Ct. 
203,  in  which  Mr.  Justice  Hughes 
said:  "The  right  of  public  con- 
trol, in  requiring  such  a  license, 
is  asserted  by  virtue  of  the  char- 
acter of  the  employment,  but  while 
such  a  requirement  may  be  prop- 
er in  the  case  of  local  or  intrastate 
business,  it  cannot  be  justified  as 
a  prerequisite  to  the  conduct  of 
the  business  that  is  interstate. 
Not  only  is  the  latter  protected 
from  the  action  of  the  State,  either 
directly    or    through    its    munici- 


palities, in  laying  direct  burdens 
upon  it,  but,  in  the  present  in- 
stance. Congress  has  exercised  its 
authority  and  has  provided  its 
own  scheme  of  regulation  in  or- 
der to  secure  the  discharge  of  the 
public  obligations  that  the  busi- 
ness involves." 

23.  United  State  v.  Adams  Exp. 
Co.,  229  U.  S.  381,  57  L.  Ed.  1237. 
33  Sup.  Ct.  878.  "It  has  been 
notorious,"  said  the  Court,  "for 
many  years  that  some  of  the  great 
express  companies  are  organized 
as  joint  stock  associations,  and 
the  reason  for  the  amendment 
hardly  could  be  seen  unless  it  was 
intended  to  bring  those  associa- 
tions under  the  act.  As  suggested 
in  the  argument  for  the  Govern- 
ment, no  one,  certainly  not  the 
defendant,  seems  to  have  doubted 
that  the  statute  now  imposes  up- 
on them  the  duty  to  file  schedules 
of   rates.      American    Express   Co. 


§  109]  (  'ahkikhs  Under  Commerck  Act.  257 

A  railroad  fom])any  not  otiiorwise  subject  to  tlie  act, 
subjects  itself  to  the  jurisdiction  of  tlie  Interstate  Com- 
merce Commission  and  the  provisions  of  the  statute  if 
it  transports  express  matter  for  an  express  company 
that  is  subject  to  the  act.'*  The  Carmack  amendment, 
requiring  all  common  carriers  to  issue  a  bill  of  lading 
and  making  them  liable  for  loss  or  damage  on  lines  of 
connecting  carriers,  api)lies  to  express  companies."  The 
Supreme  Court  once  held-"  that  express  companies  under 
the  provisions  of  Section  6  and  Section  3,  of  the  Elkins 
Act  were  prohi])ited  from  giving  franks,  that  is,  free 
transportation  of  personal  ))aggage,  to  their  employes 
and  members  of  their  families,  and  to  officers  and  em- 
ployes of  other  carriers  and  members  of  their  families 
in  exchange  for  passage  issued  by  the  transportation 
companies;  but  the  effect  of  this  decision  was  nullified 
by  an  amendment  to  Section  1  in  1910  which  provides 
that  the  provision  prohibiting  free  transportation  shall 
not  be  construed  to  prohibit  the  privilege  of  passes  or 
franks,  or  the  exchange  thereof  with  each  other,  for  the 
officers,  agents,  employes,  and  their  families  of  such 
telegraph,  telephone,  and  cable  lines,  and  the  officers, 
agents,  employes  and  their  families  of  other  common 
carriers  subject  to  the  provision  of  the  statute. 

Since  it  has  acquired  jurisdiction  over  independent 
express  companies,  the  Interstate  Commerce  Commis- 
sion has  frequently  been  called  upon  to  adjust  com- 
plaints against  them  and  to  adopt  rules  and  regulations 
o-overning  the  transportation  of  interstate  shipments.-' 

V.  United  States.  212  U.  S.  522,  531.  Commission. 

(The  American  Express  Company  25.     Wells,  Fargo  &  Co.  v.  Nei- 

is  a  joint  stock  association).     But  man-Marcus  Co.,  227  U.  S.  469,  57 

if  it   imposes  upon   them  the  du-  L.  Ed.  600,  33  Sup.  Ct.  267;    Adams 

ties  under  the  words  common  car-  Exp.  Co.  v.  Croninger,   262   U.   S. 

rier   as   interpreted,    it   is   reason-  491,  57  L.  Ed.  314.  33  Sup.  Ct.  148. 

able    to    suppose    that    the    same  44  L.  R.  A.   (N.  S.)   257. 
words  are  intended  to  impose  up-  26.     American  Exp.  Co.  v.  Unit- 

on  them  the  penalty   inflicted   on  ed  States,  212  U.  S.  522,  53  L.  Ed. 

common  carriers  in  case  those  du-  635,  29   Sup.  Ct.  315. 
ties  are  not  performed."  27.     In  Re  Express  Rates.  Prac- 

24.      Conference    Rulings,    Nos.  tices,  Accounts  and   Revenues,   35 

197,   368,  of   Interstate   Commerce  I    C.  C.  3;    Lindsay  &  Co.  v.  North- 

1    Control    tairii'is    17 


258  Duties  to  Interstate  Shippers.  [^  109 

A  railroad  company,  it  has  been  held,  may  contract  to 
give  one  express  company  tlie  exclusive  right  to  trans- 
port express  over  its  line  to  the  exclusion  of  all  other 
companies.-^ 

§  110.  Sleeping  Car  Companies  Placed  Under  Juris- 
diction of  Commission  by  Hepburn  Act  of  1906.  Sleep- 
ing car  companies  do  not  assume  or  require  the  status 
of  common  carriers  of  passengers  by  furnishing  sleep- 
ing cars  to  be  used  by  the  traveling  public  under  a  con- 
tract with  a  railroad  company  unless  ^they  are  declared 
to  be  common  carriers  by  some  statutory  provision. 
They  perform  an  auxiliary  function  in  the  transportation 
of  passengers  and  are  engaged  in  a  public  calling,  but 
not  as  common  carriers.-^  Their  status  as  carriers  is, 
in  some  respects,  analogous  to  private  car  ovtaiers  leasing 
freight  cars  to  railroad  companies.  These  owners  are 
not,  it  has  been  held,  common  carriers.^" 

Under  the  original  act,  therefore,  sleeping  car  com- 
panies were  not  under  the  jurisdiction  of  the  Inter- 
state Commerce  Commission  though  if  a  railroad  com- 
pany furnished  the  sleeping  cars,  the  rates  charged  for 
accommodation  therein  were  subject  to  the  control  of 
the  Commission.  By  the  Hepburn  Amendment  of  1906 
to  Section  1  of  the  Act,  sleeping  car  companies  were 
specifically  included  within  the  term  "common  carrier" 
as  used  in  the  statute.  Since  that  time  the  Commission 
has,  in  several  cases,  investigated  and  determined  upon 

em    Exp.    Co.,    33    I.    C.    C.    394;  Re    Express   Rates,   Practices,   Ac- 

Brackett    Co.    v.    Great    Northern  counts  and  Revenues,  24  I.  C.  C. 

Exp.   Co.,   29    I.   C.   C.   667;     Rail-  38O. 

road  Com'rs  of  Florida  v.  South-  ^g.     Express  Cases.  117  U.  S.  1. 

ern  Exp.  Co.,  28  I.  C.  C.  634;  Acme  ^g  l.  Ed.  791,  6  Sup.  Ct.  542.  628. 

Portland  Cement  Co    v^  Amencan  ^                  ^^^ 
Exp.  Co.,  28  I.  C.  C.  316;    Atlantic 

Packing  Co.  V.  American  Exp.  Co..  ^ed.     1017;      Lemon     v.     Pullman 

28    I.    C.    C.    244;     In    re    Express  Palace  Car  Co..  52  Fed.  262. 

Rates,  28  I.  C.  C.  132;     Parlin  &  30.      Ellis    v.    Interstate    Com- 

Orendorff     Plow     Co.     v.     United  merce  Commission,  237  U.  S.  434, 

States  Exp.  Co.,  2G  I.  C.  C.  561;  In  59  L.  Ed.  1036,  35  Sup.  Ct.  645. 


§  Hi  J  Carriers  Under  Commerce  Act.  250 

the   reasonableness  of   specific   rates   charged   by    sucli 
sleepin<^  car  companies.^^ 

A  statute  of  tlie  state  of  Wisconsin,  passed  in  1011, 
required  the  upper  bciHi  of  a  section  in  a  sleeping  car 
to  be  closed  whenever  a  person  en,c:aj?ed  a  lower  berth 
and  the  upper  berth  of  the  same  section  was  not  at  the 
same  time  engaged  or  occupied.  This  statute  was  held 
invalid  by  the  Su]ireme  Court  of  the  United  States  as  a 
taking  of  the  property  of  the  railroad  without  due  pro- 
cess of  law  in  violation  of  the  federal  constitution.''^ 
The  question  whether  the  statute  was  a  direct  inter- 
ference with  interstate  commerce  and  in  conflict  with 
the  rates  and  regulations  filed  with  the  Interstate  Com- 
merce Commission  was  raised  by  the  railroad  company 
in  the  case  but  was  not  decided  by  the  court.  ''A  sleep- 
ing car  may  not  be  an  'inn  on  wheels,'  "  said  the  court, 
"but  the  operating  company  does  not  engage  to  furnish 
its  patrons  with  a  place  in  which  they  can  rest  without 
intrusion  upon  their  privacy.  Holding  out  these  induce- 
ments and  seeking  this  patronage,  the  company  is  en- 
titled to  the  privilege  of  managing  its  business  in  its 
own  way  so  long  as  it  does  not  injuriously  affect  the 
health,  comfort,  safety  and  convenience  of  the  public. 
The  right  of  the  state  to  regulate  public  carriers  in  the 
interest  of  the  public  is  very  great.  But  that  great 
power  does  not  warrant  an  unreasonable  interference 
with  the  right  of  management  or  the  taking  of  the  car- 
rier's property  without  compensation." 

§  111.  Receivers  and  Purchasers  Pendente  Lite.  Re- 
ceivers of  common  carriers  by  railroad  are  eommon  car- 
riers within  the  meaning  of  the  Act  and  are  subject  to 
the  regulations  thereof.^^    Orders  of  the  Interstate  Com- 

31.  Commerce  Club  of  Sioux  v.  State.  238  U.  S.  491.  59  L.  Ed. 
Fans  V.  Pullman  Co.,  31  I.  C.  C.  1423.  35  Sup.  Ct.  869,  L.  R.  A. 
664;     Corporation    Commission    of       1916A   1133. 

Oklahoma  v.  Atchison.  T.  &  S.  F.  33.      Independent    Refiners'    As- 

Ry.  Co.,  25  I.  C.  C.  120.  sociation  v.  Western  New  York  & 

32.  Chicago,  M.  &  St.  P.  R.  Co.       P.  R.  Co.,  6  I.  C.  R.  378. 


'260  Duties  to  Interstate  Shippees.  [^  111 

merce  Commission  made  pursuant  to  the  statute  are  also 
binding  upon  pureliasers  of  the  railroad  property.^* 

§  112.  Railroad  Companies  Incorporated  in  Foreign 
Countries  and  Engaged  in  Interstate  Commerce.     The 

l)rovisions  of  tlie  Interstate  Commerce  Act  appl}^  to  rail- 
road companies  incorporated  in  foreign  countries  as  to 
their  traffic  within  the  United  States.  Such  carriers,  for 
instance,  as  the  Grand  Trunk  System  and  the  Canadian 
Pacific  Company  are  under  the  jurisdiction  of  the  Inter- 
state Commerce  Commission  while  engaged  in  interstate 
or  foreign  commerce  in  the  United  States  and  must  con- 
form to  all  the  rules  and  regulations  that  govern  com- 
panies incorporated  in  the  United  States.  This  rule  was 
enforced  by  the  Interstate  Commerce  Commission  when 
it  held  that  the  Grand  Trunk  Eailway  Company  had 
violated  Section  6  of  the  Act  in  charging  less  than  the 
published  rate  for  shipments  from  points  in  the  State 
of  New  York  to  cities  in  Canada.^^ 

§  113.  Statute  Applies  to  Individuals  and  Partner- 
ships as  Well  as  Incorporated  Companies.    The  Act  to 

Regulate  Commerce  applies  "to  any  corporation  or  any 
person  or  persons"  engaging  in  the  transportation  of 
passengers  or  property  from  a  point  in  one  state  to  a 
point  in  another.  In  some  of  the  states,  the  law  per- 
mits only  incorporated  companies  to  act  as  common  car- 
riers, and  as  a  matter  of  fact  and  practice,  common 
carriers  by  rail  are  usually  incorporated  companies. 

But  in  view  of  this  statutory  definition  of  inter- 
state carriers  subject  to  federal  control,  it  follows  that 
incorporation  is  not  a  condition  precedent  to  the  right 
to  be  a  common  carrier.  Tliat  relation  to  the  public  may 
lawfully  be  sustained  with  respect  to  interstate  traffic 
by  individuals  or  partnerships  or  other  associations.^^ 

34.  Interstate  Commerce  Com-      Grand  Trunk  Ry.  Co.,  2  I.  C.  R. 
mission   v.   Western   New   York  &       496. 

P.  R.  Co.,  82  Fed.  192.  36.     Tap  Line  Case,  23  I.  C.  C. 

35.  In     Re     Investigation     of      277. 


§  lloj  Carbiers  Under  Commerce  Act.  261 

A  boat  line,  therefore,  owned  by  an  individual,  is  not, 
for  that  reason,  to  be  deprived  of  the  right  to  have 
through  routes  and  joint  rates  established  with  connect- 
ing railway  companies." 

37.      Truckers    Transfer    Co.    v.       Charleston  &  W.  C.  Ry.  Co.,  27  I. 

C.  C.  275. 


CHAPTER  VII 

Shtp.^ients   and    Teansportation    Services    Controlled 
By  Interstate  Commerce  Act. 

Sec.  114.     Constitutive  Elements  of  Interstate  Transportation   Within 

the  Act. 
Sec.  115.     Illustrative  Applications  of  the  Foregoing  Principles  in  Ad- 
judicated Cases. 
Sec.  116.     Shipments  Between  Two  Points  in  Same  State  Passing  En- 
route  Through  Another  State. 
Sec.  117.     Absence   of  Definite   Destination   in    Foreign   Country  or   in 

Other  State  Immaterial. 
Sec.  118.     Change    of    Destination    in    Transit    as    Affecting    Interstate 

Character  of  Shipment. 
Sec.  119.     Interstate  Transportation  Includes  Receipt  and  Delivery  of 

Traffic  as  well  as  Actual  Carriage. 
Sec.  120.     When   Temporary   Stoppage  or  Interruption  Changes  Inter- 
state   Character    of    Shipment    into    Intrastate    and    Vice- 
Versa. 
Sec.  121.     When   Interstate  or  Intrastate  Character  of  a   Shipment   is 

not  Changed  by  Temporary   Stoppage  or  Interruption. 
Sec.  122.     Sale  and  Delivery  of  Coal  f.  o.  b.  Cars  at  Mine  for  Trans- 
portation  to   Purchasers   Outside   the    State. 
Sec.  123.     Shipments   from   Points   in   One   State   to   a   Port   of   Trans- 
shipment in  Same  State  for  Export  Included. 
Sec.  124.     Shipments  from  One  Foreign  Country  to  Another  Through 

the  United  States  Beyond  Control  of  Commission. 
Sec.  125.     Regulation  of  Terminal  Charges,  Services  and  Facilities  for 

Interstate  Shipments. 
Sec.  126.     Transportation  Wholly  Within  One  State  Not  Under  Federal 

Control. 
Sec.  127.     Transit  Privileges  Part  of  Transportation  Under  Control  of 

Interstate  Commerce  Commission. 
Sec.  128.     Regulation  of  Grain  Elevation  Service  Under  Federal  Control. 
Sec.  129.     Loading,  Dunnage  and  Special  Preparation  of  Freight  Cars, 

for  Shipments  of  Particular  Commodities. 
Sec.  130.     Weighing   of   Interstate    Shipments    of   Freight    Under   Fed- 
eral Control. 
Sec.  131.     Regulations  and  Rules  Concerning  Baggage  of  Interstate  Pas- 
sengers Under  Control   of  Commission. 
Sec.  132.     Refrigeration,    Ventilation    and    Icing    of    Property    in    Cars 

Part  of  Transportation  Duties  of  Interstate  Carriers. 
Sec.  133.     Track  Storage  and  Demurrage  Charges  in  Connection  with 

Interstate  Shipments  Under  Control   of  Commission. 
Sec.  134.     Wharves  and  Connecting  Tracks  of  Interstate  Carriers  Pub- 
lic Facilities  Under  Federal  Control. 
(262) 


Sec. 

137. 

Sec. 

138. 

Sec. 

139. 

<§,  1141       TH.xxsj'oiiiAiioN  Services  Under  Act.  2G3 

Sec.  135.     Jurisdiction    of    Commission    Over    Port    Switcliiiig    Service 

Performed  on  Import  Traffic. 
Sec.     13G.     Interstate  Transportation  by  Land  of  Explosives  and  Other 
Dangerous  Articles  Under  Federal  Control. 
Peddlinfi  Merchandise  from  Cars  not  Transportation  Service 
Which  Carriers  may  he  Compelled  to  Furnish. 
Terms   "Railroad"   and  "Transportation"   Defined   by   Statute. 
Statute  not  Applicable  to  all  Interstate  Commerce. 

§  114.  Constitutive  Elements  of  Interstate  Trans- 
portation Within  the  Act.  Altliou.^li  Section  1  ol'  the 
Act  to  Regulate  Commerce  defines  the  interstate  traiis- 
])ortation  of  persons  and  jiroperty  subject  tliereto,  as 
that  wliich  is  moved  from  one  state  or  territory  to 
anotlier  state  or  territory,  and  excludes  transportation 
wholly  within  one  state  and  not  siiipped  to  another 
state  or  territory,  the  question  whether  a  particular 
transaction  constitutes  interstate  commerce  lias  been  the 
cause  and  source  of  much  litigation.^ 

The  interstate  status  of  a  shipment  cannot  be  deter- 
mined by  the  mere  forms  of  billing  or  contract,  but  by 
the  essential  character  of  the  commerce,  that  is,  whether 
in  fact  there  is  a  continuity  of  movement  from  a  point 
in  one  state  to  a  point  in  another.  Whenever  a  com- 
modity is  delivered  to  a  carrier  for  the  purpose  of  being 
moved  to  another  state,  then  the  interstate  character  of 
that  commodity  has  commenced  and  continues  to  the 
linal  place  of  destination  until  delivered  to  the  con- 
signee." 

1.        Railroad     Commission     of  Worthington,  225  U.  S.  101,  5G  L. 

Louisiana  v.  Texas  &  P.  Ry.  Co.,  Ed.  1004,  32  Sup.  Ct.  653;    Galves- 

229  U.   S.  336,  57  L.   Ed.  1215,  33  ton,  H.  &  S.  A.  R.  Co.  v.  WaUace. 

Sup.    Ct.    837;     Susquehanna   Coal  223   U.   S.   481,   56   L.   Ed.   516.   32 

Co.  V.  City  of  South  Amboy,  228  Sup.  Ct.  205;     Louisville  &  N.  R. 

U.  S.  665,  57  L.  Ed.  1015,  33  Sup.  Co.  v.  F.  W.  Cook  Brewing  Co.,  223 

Ct.  712;     Bacon  v.  People,  227  U.  U.  S.  70,  56  L.  Ed.  355,  32  Sup.  Ct. 

S.  504,  57  L.  Ed»  615,  33  Sup.  Ct.  189;     Southern  Pac.  Terminal  Co. 

299;    Texas  &  N.  O.  R.  Co.  v.  Sa-  v.    Interstate    Commerce    Commis- 

bine  Tram  Co..   227  U.   S.   111.   57  sion.  219  U.  S.  498,  55  L.  Ed.  310. 

L.  Ed.  442,  33  Sup.  Ct.  229;    Unit-  31   Sup.  Ct.   279;     General  Oil   Co. 

ed  States  v.  Union  Stock  Yard  &  v.  Grain,  209  U.  S.  211.  52  L.  Ed 

Transit  Co.  of  Chicago.  226  U.  S.  754,  28  Sup.  Ct.  475. 
286,  57  L.  Ed.  226,  33  Sup.  Ct.  83;  2.    Pennsylvania  R.  Co.  v.  Clark 

Railroad    Commission    of    Ohio    v.  Bros.  Coal  Min.  Co.,  238  U.  S.  456, 


264  Duties  to  Interstate  Shippers.  [§  114 

The  interstate  character  of  such  a  shipment  cannot 
be  destroyed  by  ignoring  tlie  point  of  origin  and  des- 
tination, separating  the  rate  into  parts  and  issuing  local 
bills  of  lading  for  the  shipment  between  two  points  in 
the  same  state,  when  it  is,  in  fact,  a  continuous  ship- 
ment from  a  point  in  one  state  to  a  point  in  another. 

Section  7  of  the  Act  declares  that  it  shall  be  unlaw- 
ful for  any  common  carrier  subject  to  the  provisions  of 
the  Act  to  enter  into  any  combination,  contract  or  agree- 
ment, express  or  implied,  to  prevent,  by  change  of  time 
schedule,  carriage  in  different  cars,  or  by  other  means 
or  devices,  the  carriage  of  freights  from  being  continuous 
from  the  place  of  shipment  to  the  place  of  destination, 
and  further  provides  that  no  break  of  bulk,  stoppage 
or  interruption  made  by  such  common  carrier  shall  pre- 
vent the  carriage  of  freights  from  being  and  being  treat- 
ed as  one  continuous  carriage  from  the  place  of  ship- 
ment to  the  place  of  destination,  unless  such  break, 
stoppage,  or  interruption  was  made  in  good  faith  for 
some  necessary  purpose,  and  without  any  intent  to  avoid 
or  unnecessarily  interrupt  such  continuous  carriage  or 
to  evade  the  provisions  of  the  statute. 

The  movement  of  a  commodity,  therefore,  from  a 
point  in  one  state  to  a  point  in  another  must  be  regard- 
ed as  an  entirety  and  it  takes  character  as  interstate 
commerce  when  it  is  delivered  to  a  carrier  for  the  pur- 
pose of  transportation  to  another  state.^ 

59  L.   Ed.   1406,  35   Sup.   Ct.   896;  A    31,  173  Fed.  448;  United  States 

Illinois  Cent.  R.  Co.  v.  Louisiana  v.  Colorado  &  N.  W.  R.  Co.,  85  C. 

R.  R.  Commission,  236  U.  S.  157,  C.  A.  27,  157  Fed.  321,  15  L.  R.  A. 

59    L.   Ed.    517,    35    Sup.    Ct.    275;  (N.  S.)  167,  13  Ann.  Cas.  893;    Port 

Baer  Bros.  Mercantile  Co.  v.  Den-  Arthur  Rice  Milling  Co.  v.  Texar- 

ver  &  R.  G.  R.  Co.,  233  U.  S.  479,  kana  &  Ft.  S.  Ry.  Co.,  28  I.  C.  C. 

58  L.   Ed.   1055,   34   Sup.  Ct.   641;  697. 

United  States  v.  Vaccaro  Bros.  &  3.    Pennsylvania  R.  Co.  v.  Clark 

Co.,  230  Fed.  943;     United   States  Bros.  Coal  Min.  Co.,  238  U.  S.  456, 

ex  rel.  Attorney  General  v.  Union  59   L.   Ed.   1406,   35    Sup.   Ct.   896; 

Stockyard  &  Transit  Co.  of  Chica-  Pennsylvania  Co.  v.  United  States, 

go,  192  Fed.  330;    Tompkins  v.  In-  236  U.  S.  351,  59  L.  Ed.  616,  35  Sup. 

ternational  Paper  Co..  106  C.  C.  A.  Ct.   370;     Illinois  Cent.  R.  Co.   v. 

529,   183   Fed.   773;     Pacific   Coast  De  Fuentes,  236  U.  S.  157,  59  L. 

R.  Co.  v.  United  States,  98  C.  C.  Ed.    517,   35   Sup.   Ct.   275;    South 


§  115J       Transportation  Skkvices  Under  Act. 


■2()0 


§  115.  Illustrative  Applications  of  the  Foregoing 
Principles  in  Adjudicated  Cases.  Tlie  rules  euunciated 
in  the  i)recediii^-  i)ara,urai)li  were  illustrated  and  applied 
to  particular  shipments  under  the  following  circum- 
stances: A  shi])ment  of  lumber  on  local  bills  of  lading 
fi'om  one  i)oint  in  Texas  to  another  but  destined  for 
export  to  a  foreign  country  and  so  intended  at  the  time 
of  shipment,  was  held  not  to  be  an  intrastate  shipment 
while  moving  between  the  two  points  in  the  same  state." 
The  transportation  of  coal  from  one  point  in  Ohio  to 


Covington  &  C.  St.  R.  Co.  v.  City 
of  Covington,  235  U.  S.  537,  59  L. 
Ed.  350,  35  Sup.  Ct.  158,  L.  R.  A. 
1915F  792;  Southern  Pac.  Termi- 
nal Co.  V.  Interstate  Commerce 
Commission,  219  U.  S.  498,  55  L. 
Ed.  310,  31  Sup.  Ct.  279;  Coving- 
ton Stock-Yards  Co.  v.  Keitli,  139 
U.  S.  128,  35  L.  Ed.  73,  11  Sup.  Ct. 
461;  Coe  v.  Errol,  116  U.  S.  517, 
29  L.  Ed.  715,  6  Sup.  Ct.  475. 

4.  Texas  &  N.  O.  R.  Co.  v.  Sa- 
bine Tram  Co.,  227  U.  S.  Ill,  57 
L.  Ed.  442,  33  Sup.  Ct.  229,  "The 
shipments  having  the  character 
of  foreign  commerce,"  said  the 
Court,  "when  they  passed  'out 
through  the  port  of  Sabine,' 
when  did  they  acquire  it? 
We  have  had  the  occasion  to  ex- 
press at  what  point  of  time  a  ship- 
ment of  goods  may  be  ascribed  to 
interstate  or  foreign  commerce, 
and  decided  it  to  he  when  the 
goods  have  actuaUy  started  for 
their  destination  in  another  state 
or  to  a  foreign  country,  or  deliver- 
ed to  a  carrier  for  transportation. 
♦  *  *  That  there  must  be  a 
continuity  of  movement  we  may 
concede,  and  to  a  foreign  destina- 
tion intended  at  the  time  of  the 
shipment.  *  *  *  In  the  pres- 
ent case  the  Sabine  Company  was 
the  manufacturer  and  shipped 
them  to  the  Powell  Company,  the 


purchaser,  who  paid  the  freight 
charges  for  the  Sabine  Company. 
Upon  the  arrival  of  the  lumber  at 
Sabine,  it  was  carried  without  de- 
lay beyond  and  unloaded  into  .the 
water  in  reach  of  a  ship's  tackle. 
The  continuity  of  the  shipment 
was  not  as  much  broken  as  in  the 
cited  case,  *  *  *  The  deter- 
mining circumstance  is  that  the 
shipment  of  the  lumber  was  but 
a  step  in  its  transportation  to  its 
real  and  ultimate  destination  in 
foreign  countries.  In  other  words, 
the  essential  character  of  the 
commerce,  not  its  mere  accidents, 
should  determine.  It  was  to  sup- 
ply the  demand  of  foreign  coun- 
tries that  the  lumber  was  pur- 
chased, manufactured  and  shipped, 
and  to  give  it  a  various  character 
by  the  steps  in  its  transportation 
would  be  extremely  artificial. 
Once  admit  the  principle,  and 
means  will  be  afforded  of  evading 
the  national  control  of  foreign 
commerce  from  points  in  the  in- 
terior of  a  state.  There  must  be 
transshipment  at  the  seaboard,  and 
if  that  may  be  made  the  point  of 
ultimate  destination  by  the  device 
of  separate  bills  of  lading  the  com- 
merce will  be  given  local  charac- 
ter, though  it  be  essentially  for- 
eign." 


266 


Duties  to  Interstate  Shippers. 


[§  115 


another  witli  tlie  intention  of  reloading  it  into  vessels 
c.n  Lake  Erie  for  shipment  to  other  states  or  to  Canada, 
T\as  held  to  be  interstate  or  foreign  transportation." 
A  shipment  of  a  commodity  from  St.  Louis,  Mo.,  to 
Leadville,  Colo.,  ^Yhich  was  moved  by  the  first  carrier 
to  Pueblo,  Colo.,  under  one  contract,  and  by  another 
carrier  from  Pueblo  to  Leadville  on  a  local  bill  of  lading, 
although  there  was  no  through  route  or  through  rate 
established  between  St.  Louis  and  Leadville,  was  an 
interstate  movement  throughout.'^  A  movement  of  logs 
and  staves  from  Alexandria  to  New  Orleans,  under  local 


5.  Railroad  Commission  of  Ohio 
V  Worthington,  225  U.  S.  101,  56 
L.  Ed.  1004,  32  Sup.  Ct.  653.  The 
Court  said:  "It  is  contended  that 
this  transportation  of  the  coal  un- 
der the  rate  fixed  by  the  Railroad 
Commission  i  not  within  the  pow- 
er and  authority  of  the  Interstate 
Commerce  Commission  under  Sec- 
tion 1  of  the  Act  to  regulate  com- 
merce, which  makes  the  provi- 
sions of  the  Act  inapplicable  to 
the  transportation  of  property 
wholly  within  one  state,  and  not 
shipped  to  or  from  a  foreign  coun- 
try from  or  to  a  state  or  territory; 
and,  furthermore,  that  a  transpor- 
tation of  the  character  here  in 
question  is  only  within  the  juris- 
diction of  the  Interstate  Commerce 
Commission  when  it  is  a  trans- 
portation partly  by  railroad  and 
partly  by  water  when  both  are 
used  under  a  common  control, 
management,  or  arrangement  for 
a  continous  carriage  or  shipment; 
and  therefore  that  the  subject  mat- 
ter in  question  is  left  within  the 
state  jurisdiction.  On  the  other 
hand,  it  is  contended  that  this 
transportation  is  within  the  juris- 
diction of  the  Commission  under 
the  Act  to  regulate  commerce.  It 
is  enough  to  now,  hold,  as  we  do, 
that  the   establishing  of  the  rate 


in  question  is  an  attempt  to  regu- 
late interstate  commerce  and  is 
therefore  beyond  the  power  of  the 
state  or  a  commission  assuming  to 
act  under  its  authority.  We  there- 
fore reach  the  conclusion  that  un- 
der the  facts  shown  in  this  case 
the  Railroad  Commission,  in  fix- 
ing the  rate  of  seventy  cents  for 
the  transportation  above  describ- 
ed, attempted  to  directly  regulate 
and  control  interstate  commerce, 
and,  for  that  reason,  the  enforce- 
ment of  its  order  should  be  en- 
joined." 

6.  Baer  Bros.  Mercantile  Co.  v. 
Denver  &  R.  G.  R.  Co.,  233  U.  S. 
479,  58  L.  Ed.  1055,  34  Sup.  Ct.  641, 
in  which  the  Court  said:  "The 
Denver  and  Rio  Grande  claimed 
in  the  record  in  the  Court  of  Ap- 
peals that  the  order  was  void  on 
its  face  for  the  reason  that  the 
Commission  was  without  jurisdic- 
tion to  pass  upon  the  reasonable- 
ness of  the  rate  from  Pueblo,  Colo- 
rado to  Leadville,  Colorado,  But 
while  there  was  no  through-rate 
and  no  through-route  there  was 
in  fact,  a  through  shipment  from 
St.  Louis,  Missouri,  to  Leadville, 
Colorado.  Its  interstate  charac- 
ter could  not  be  destroyed  by  ig- 
noring the  points  of  origin  and 
destination,  separating  the  rate  in- 


§  IIG]       Transportation  Services  Under  Act. 


26- 


bills  of  lading,  i)rovi(iiiig-  for  delivery  at  X(j\v  Orleans 
to  s]»ii)per's  or  consignee's  order,  but  which  in  fact 
was  intended  by  the  siiipper  to  be  exported  to  foreign 
countries,  constituted  a  foreign  shipment  within  tlie 
meaning  of  tlie  Interstate  Commerce  Act.' 

§  116.  Shipments  Between  Two  Points  in  Same 
State  Passing  Enroute  Through  Another  State.  Jf  a 
commodity  shipped  from  one  point  to  another  in  one 
state  passes  in  transit  tli rough  another  state,  tlie  trans- 
action constitutes  interstate  commerce  and  is  subject  to 
tlie  provisions  of  the  Interstate  Commerce  Act.^    Thus, 


to  its  component  parts  and  by 
charging  local  rates  and  issuing 
local  way  bills,  attempting  to  con- 
vert an  interstate  shipment  into 
intrastate    transportation." 

1.       Railroad      Commission     of 
Louisiana  v.  Texas  &  P.  R.  Co.,  229 
U.  S.  336,  57  L.  Ed.  1215,  33  Sup. 
Ct.   837.     The  only  difference  be- 
tween interstate  and  foreign  com- 
merce is  that  one  is  destined  for 
another  state  and  the  other  for  a 
foreign    country.      The    principles 
in  determining  both  are  the  same 
and  decisions  interpreting  one  are 
relevant   in   construing  the  other. 
8.  United  States.     Ewing  v.  City 
of  Leavenworth,  226  U.  S.  464,  57 
L.  Ed.  303,  33  Sup.  Ct.  157;    Han- 
ley  V.  Kansas  City  Southern  R.  Co., 
187   U.    S.   617,   47   L.    Ed.    333,   23 
Sup.    Ct.    214;      United    States    v. 
Erie  R.  Co.,  166  Fed.  352;    United 
States  v.   Chicago   Great   Western 
Ry.  Co.,  162  Fed.  775;    West  Vir- 
ginia Rail  Co.  v.  Baltimore  &  O. 
R.  Co.,  26  I.  C.  C.  622;    Board  of 
Trade  of  Winston-Salem,  N.  C.    .-. 
Norfolk  &  W.  R.  Co..  26   I.  C.  C. 
146;     Baker    Commercial    Club    v. 
Oregon-Washington    R.    &    N.    Co., 
25  L  C.  C.  281;    Bridgeman-Russell 
Co.   V.    Great    Northern    Exp.    Co., 
22  L  C.  C.  573. 


Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Spriggs,  113  Ark.  118, 
167  S.  W.  96;  St.  Louis  &  S.  F. 
R.  Co.  V.  State,  87  Ark.  562,  113 
S.  W.  203. 

California.  Cowden  v.  Pacific 
Coast  S.  S.  Co.,  94  Cal.  470,  18  L. 
R.  A.  221,  28  Am.  St.  Rep.  142,  29 
Pac.  873. 

Idaho.  Crescent  Brewing  Co.  v. 
Oregon  Short  Line  R.  Co.,  24  Ida- 
ho, 106,  132  Pac.  975. 

Kansas.  Leibengood  v.  Missouri, 
K.  &  T.  R.  Co.,  83  Kan.  25,  28  L. 
R.  A.  (N.  S.)  985,  109  Pac.  988; 
Patterson  v.  Missouri  Pac.  R.  Co., 
77  Kan.  236,  15  L.  R.  A.  (N.  S.) 
733,   94  Pac.  138. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  p.  R.  Co.  v.  Goode,  155  Ky. 
153,  159  S.  W.  695;  Louisville  &  N. 
R.  Co.  v.  Allen,  152  Ky.  145,  153  S. 
W.   198. 

Maryland.  State  v.  Cumberland 
&  P.  R.  Co.,  105  Md.  478,  66  Atl. 
458. 

Minnesota.  Hardwick  Farmers' 
Elevator  Co.  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  110  Minn.  25,  19  Ann. 
Cas.  1088,  124  N.  W.  819. 

Missouri.     Bowles  v.  Quincy,  0. 

&  K.  C.  R.  Co.. Mo.  App. . 

187,  S.  W.  131;    Howard  v.  Chica- 
go,  R.   I.   &   P.  Ry.   Co.,  Mo. 


268 


Duties  to  Interstate  Shippers. 


[§  116 


traffic  moving  from  one  point  to  another  in  West  Virginia 
but  passing  in  transit  for  several  hundred  feet  through 
the  state  of  Kentucky,  was  held  to  be  subject  to  the 
jurisdiction  of  the  Commission.^  And  similarly  a  ship- 
ment between  two  points  in  the  United  States  but  pass- 


App.  ,  184  S.  W.  906;    Potter 

V.  Kansas  City  Southern  R.  Co., 
187  Mo.  App.  56,  172  S.  W.  1153; 
DeardorfE  v.  Chicago,  B.  &  Q,  R. 
Co.,  263  Mo.  65,  172  S.  W.  333; 
Mires  v.  St.  Louis  &  S.  F.  R.  Co., 
134  Mo.  App.  379,  114  S.  W.  1052. 

Oklahoma.     Western  U.  Tel.  Co. 

V.  Kaufman,  Okla.  ,  162 

Pac.  708. 

Texas.     Wichita  Falls  &  W.  Ry. 

Co.  of  Texas  v.  Asher,  Tex. 

Civ.  App.  ,  171  S.  W.  1114. 

9.  West  Virginia  Rail  Co. 
V.  Baltimore  &  O.  R.  Co.,  26  I. 
C.  C.  622,  in  which  the  Com- 
mission said:  "Complainant's 
shipments  moved  via  the  Balti- 
more &  Ohio  Railroad  from  Hunt- 
ington to  Kenova,  W.  Va.,  a  dis- 
tance of  8  miles,  and  thence  over 
the  Norfolk  &  Western  Railway  to 
the  points  of  destination.  The 
Norfolk  &  Western  Railway  Com- 
pany, which  assumed  the  burden 
of  the  defense,  contends  that  trans- 
portation from  points  in  West  Vir- 
ginia to  destinations  in  the  same 
state  is  not  within  the  jurisdiction 
of  the  Commission,  although  for 
a  short  distance,  about  1,500  feet, 
the  traffic  moves  through  the  state 
of  Kentucky.  It  asks  that  the 
Commission  reconsider  its  opin- 
ions in  the  cases  of  New  Orleans 
Cotton  Exchange  v.  C,  N.  0.  & 
T.  P.  Ry.  Co.,  2  I.  C.  C,  375;  Milk 
Producers  Protective  Asso.  v.  D., 
L.  &  W.  R.  R.  Co.,  7  I.  C.  C,  92; 
and  Wells-Higman  Co.  v.  St.  L.,  I. 
M.  &  S.  Ry.  Co.,  18  I.  C.  C,  175, 
to  the  effect  that  such  transporta- 
tion as  is  here  involved  is  within 


the  scope  of  the  act.  It  is  pointed 
out  that  while  the  Supreme  Court 
of  the  United  States,  in  Hanley  v. 
K.  C.  S.  Ry.  Co.,  187  U.  S.,  617, 
has  held  that  transportation,  when 
the  points  of  origin  and  destina- 
tion are  in  the  same  state,  is  in- 
terstate commerce  'where  a  large 
part  of  the  route  is  outside  of  the 
state,'  it  has  not  held  it  to  be  in- 
terstate commerce  subject  to  the 
provisiofis  of  the  act;  that  whether 
it  is  subject  to  the  act  is  a 
question  on  which  the  Supreme 
Court  has  not  spoken  the  final 
word  and  on  which  the  lower  fed- 
eral courts  are  divided;  that  this 
question  is  answered  in  the  af- 
firmative in  United  States  v.  D., 
L.  &  W.  R.  R.  Co.,  152  Fed.  269; 
and  that  it  is  answered  in  the 
negative  in  United  States  ex  rel. 
Kellogg  V.  L.  V.  R.  R.  Co.,  115  Fed. 
373.  In  this  case  it  appears  that 
shipments  from  Huntington  to  the 
point  of  destination  in  W^est  Vir- 
ginia pass  outside  the  state  of 
West  Virginia  into  Kentucky  for 
about  1,500  feet,  the  most  of  which 
distance  is  covered  by  a  tunnel. 
The  Norfolk  &  Western  asserts 
that  there  never  is  any  stoppage 
in  transit  of  traffic  moving  over 
the  1,500  feet;  and  there  !s  no 
place  for  the  delivery  of  freight 
and  that  the  mere  incident  of  its 
passing  over  the  1,500  feet  is  not 
sufficient  to  bring  the  transporta- 
tion between  West  Virginia  points 
within  the  scope  of  the  act.  We 
are  of  the  opinion,  however,  that 
shipments  from  Huntington  to 
points  in  West  Virginia  here  un- 


§  117]       Tkansportation  Services  Under  Act.  269 

ing  in  transit  through  the  Dominion  of  Canada  is  an 
interstate  shipment  witliin  tlie  control  of  the  Commis- 
sion." 

The  transportation  of  stoclv  from  a  point  in  Mis- 
souri to  stock  yards  at  Kansas  City,  Mo.,  the  place  for 
unloading  the  stock  being  over  the  line  in  Kansas  from 
which  point  the  stock  were  driven  back  into  the  yards 
in  Missouri,  was  held  to  be  an  interstate  sliipraent.^^ 
"The  simplest  forms  of  interstate  shipments,"  said 
Judge  Woodson,  in  the  last  case  cited,  "within  the  mean- 
ing of  the  commerce  clause  of  the  Constitution  of  the 
United  States  are  those  which  consist  of  the  shipment 
of  some  article  of  commerce  designed  from  the  initial 
point  of  shipment  in  one  state  in  the  Union,  to  be  car- 
ried to  another  point  in  another  state  thereof,  by  means 
of  one  and  the  same  common  or  private  carrier  or  by 
different  carriers,  public  or  private.  This  definition 
covers  the  case  at  bar,  as  a  glove  covers  a  hand,  as 
shown  l)y  the  authorities  to  be  presently  cited,  for  the 
reason  that  it  was  the  intention  and  agreement  of  both 
parties  to  the  contracts  of  shipment  here  involved,  that 
the  live  stock  should  be  transported  from  Hale,  Mo.,  to 
the  unloading  chutes  of  the  Kansas  City  Stock  Yards 
Company,  which,  as  before  stated,  were  situated  in  the 
state  of  Kansas.  The  mere  fact  that  after  the  stock  had 
been  transported  into  the  state  of  Kansas  and  there 
unloaded  and  was  then  driven  from  there,  on  foot,  back 
across  the  state  line  into  the  state  of  Missouri,  had  uo 
effect  whatever  upon  the  character  of  the  shipments 
made  by  the  railroad  company." 

§  117.  Absence  of  Definite  Destination  in  Foreign 
Country  or  in  Other  State  Immaterial.  If  a  commodity 
is  delivered  to  a  carrier  for  transportation  to  another 
state  or  country,  and  the  transportation  is  actually  be- 

der   consideration   are   subject   to  leal  Co.  v.  Bangor  &  A.  R.  Co..  28 

the  act  to  regulate  commerce  and  I.  C.  C.  298. 

adhere  to  our  previous  rulings  up-  11.     Deardorff  v.  Chicago,  B.  & 

on  this  question."  Q.   R.  Co.,  263   Mo.  65,   172   S.  W. 

10.  American  Agriculture  Chem-  333. 


270  Duties  to  Interstate  Shippees.  [§  117 

gun,  the  interstate  or  foreign  character,  as  the  case  may 
be,  of  siicli  a  shipment  is  not  affected  by  the  absence  of 
a  definite  destination  in  the  other   state   or  country." 

§  118.  Change  of  Destination  in  Transit  as  Affect- 
ing Interstate  Character  of  Shipment.  Wlien  goods  are 
moving  in  interstate  commerce,  that  is,  from  a  pomt  in 
one  state  to  a  point  in  another,  a  change  of  the  final 
destination  in  transit  will  not  affect  the  interstate 
character  of  the  shipment.  For  example,  a  carload  of 
freight  was  shipped  from  Crescent,  Okla.,  destined  to 
Hill  City,  Kan.,  but  at  Salina,  Kan.,  a  point  in  transit, 
the  destination  of  the  car  was  changed  to  Buffalo  Park, 
Kas.  Under  these  facts  the  court  properly  held  that 
the  movement  from  Salina  to  Buffalo  Park  was  a  part 
of  the  interstate  transportation  commencing  at  Crescent, 
Okla." 

A  car  of  corn  was  shipped  from  Yanka,  Neb.,  and 
was  consigned  to  Topeka,  Kan.,  to  the  order  of  the  con- 
signor, with  a  direction  on  the  bill  of  lading  to  notify 
a  grain  company  at  Kansas  City,  Mo.  A  draft  for  the 
purchase  price  was  sent  to  the  Kansas  City  firm  ac- 
companied by  a  bill  of  lading.  Upon  the  presentation 
of  this  draft,  the  grain  company  at  Kansas  City,  Mo., 

12  Railroad  Commission  of  Can  it  be  said  that  wtien  goods 
Ohio  V.  Worthington,  225  U.  S.  are  moving  in  interstate  carriage, 
101  56  L  Ed.  1004,  32  Sup.  Ct.  an  alteration  in  transit  of  the  final 
653'  Texas  &  N.  O.  R.  Co.  v.  Sa-  destination  will  change  the  inter- 
bine  Tram  Co.,  227  U.  S.  Ill,  57  state  character  of  the  shipment? 
L.  Ed.  442,  33  Sup.  Ct.  229,  in  if  the  railway  company  had  grant- 
which  Mr.  Justice  MeKenna  said:  ed  a  reduced,  secret,  or  preferen- 
"Nor  as  we  have  seen,  did  the  ^^^^  rate  for  the  remainder  of  the 
absence  of  a  definite  foreign  des-  interstate  carriage  to  the  altered 
tination  alter  the  character  of  the  destination,  would  it  have  been 
shipments."  fj,gg  from  federal  prosecution?  On 

13.    Kirby  v.  Union  Pac.  R.  Co  ^^^^  ^^^^^  ^^^^_  ^^^^^  ^^^  ^^^^p. 
94  Kan.  485    L.  R    A.  1916E   528  ^^^^^  ^^^^^^^  ^^^  ^^^ 

146    Pac.    1183.     The    Court   said.  -^                                       .      ^.«>         . 

,                 ,  .         .,      i„f^,.ofoto  the   exaction    of   a   rate    different 

"In  the  case  at  bar,  the  interstate  ^                             .    ^         o  t 

carriage  was  not  completed;   mere-  from  the  Kansas  rate  from  Salina 

ly  the  final  destination  of  that  in-  to   Buffalo   Park?    Both  questions 

terstate    shipment    was    changed,  must  be  answered  in  the  negative." 


§  ]1H|       Transportation  vServices  Under  Act.  271 

while  llic  crir  was  yet  in  transit,  paid  it  and  became  the 
l^ossessor  and  owner  of  the  bill  of  lading.  The  ^rain 
company  then  surrendered  to  the  carrier  the  Yanka  bill 
of  ladinu'  and  took  in  exchange  another  bill  eonsi.irnin.i!: 
the  identical  car  to  tlieii'  own  order  at  Elk  Falls,  Kas. 
In  denyinf>-  that  that  ])ait  of  the  transportation 
from  Tojx'ka,  Kan.,  to  Elk  Falls,  Kan.,  was  intrastate 
in  charactei-,  the  United  States  Supreme  Court  said:" 
** The  motion  to  dismiss  referred  to  at  the  outset  is  based 
on  the  ground  that  the  action  of  the  court  involved  no 
(luestion  of  interstate  but  purely  one  of  intrastate  com- 
merce. But  this  disregards  the  tact  that  the  bill  of  lad- 
ing wdiich  was  sued  upon  was  an  interstate  commerce 
bill  covering  a  shipment  from  Kansas  City,  Missouri, 
to  Elk  Falls,  Kansas.  True  it  is  urged  that  that  bill  of 
lading  is  not  the  test  of  whether  there  is  jurisdiction 
because  it  was  shown  that  in  reality  the  shi]iment  was 
an  intrastate  one  from  Topeka,  Kansas,  to  Elk  Falls 
in  the  State.  But  this  assumes  that  although  the  judg- 
ment rests  upon  the  conception  that  the  previous  move- 
ment of  the  corn  from  Yanka  could  not  be  considered 
as  against  the  plaintiff  because  he  was  an  innocent 
third  holder  of  the  l)ill  of  lading  issued  at  Kansas  City, 
nevertheless  for  the  pur])ose  of  determining  whether 
jurisdiction  exists  the  facts  as  to  the  shipment  from 
Yanka  must  be  treated  as  relevant.  Leaving  aside,  how- 
ever, this  contradiction  and  considering  the  facts  as  to 
the  movement  of  the  grain  from  its  inception,  we  are 
of  opinion  that  from  that  point  of  view  it  was  clearly 
established  that  the  grain  moved  in  a  continuous  inter- 
state commerce  shipment  from  the  date  of  its  departure 
from  Yanka  to  the  termination  of  the  transit  at  Elk 
Falls  and  that  the  delivery  of  the  car  to  the  Santa  Fe 
at  Topeka  for  further  movement  was  therefore  not  a 
new  and  distinct  shii^ment  in  intrastate  commerce.  We 
reach   this  conclusion   in  view  of  the  ])lace  of  business 

14.     Atchison,  T.  &  S.  F.  R.  Co.      v.  Harold,  241  U.  S.  371,  60  L.  Ed. 

1050,  36  Sup.  Ct.  665. 


272  Duties  to  Interstate  Shippees.  [§  118 

of  the  fact  that  there  was  no  person  at  Topeka  to  whom 
of  the  Fisher  Grain  Company  (Kansas  City,  Missouri), 
the  p:rain  was  consigned,  of  the  endorsement  of  the  bill 
of  lading  to  the  Fisher  Grain  Company  and  the  annexing 
to  it  of  a  draft  drawn  on  that  Company  at  Kansas  City 
for  the  purchase  price,  and  because  the  order  on  the 
face  of  the  bill  of  lading  to  'notify  C.  V.  Fisher  Grain 
Company,,  care  of  Santa  Fe  for  shipment  'made  it  ap- 
parent that  it  was  not  contemplated  that  the  interstate 
shipment  should  terminate  at  Topeka,  but  that  the  car 
should  move  on  as  the  result  of  such  direction  as  might 
be  given  while  it  was  in  transit  by  the  Fisher  Grain 
Company  at  Kansas  City,  Missouri." 

§  119.  Interstate  Transportation  Includes  Receipt 
and  Delivery  of  Traffic  as  well  as  Actual  Carriage.     The 

beginning  of  the  transit  which  constitutes  interstate 
commerce  is  the  point  of  time  when  an  article  is  com- 
mitted to  a  carrier  for  transportation  to  another  state 
or  started  on  its  ultimate  passage. ^^  Interstate  trans- 
])ortation,  therefore,  not  only  includes  the  carriage  of 
goods  from  one  state  to  another  but  also  the  receipt  of 
the  goods  by  the  initial  carrier  and  the  final  delivery 
to  the  consignee. 

A  carrier  must,  at  all  times,  be  in  proper  condition 
to  receive  from  the  shipper  and  to  deliver  to  the  con- 
signee.^® Hence,  the  facilities  of  a  carrier  for  both  the 
delivery  and  the  receipt  of  freight  as  to  interstate  ship- 
ments are  under  federal  control  ;^^  for  the  transportation 
commences  with   delivery  to  the  carrier  and   does  not 

15.  Bay     v.     Merrill     &     Ring      y.  Keith,  139  U.  S.  128,  35  L.  Ed. 
Logging  Co.,   243   U.   S.   40,   61   L.       73^  j^  g^p    ^.j.    451 

Ed.  580,  37  Sup.  Ct.  376;    McClus- 

key  V.  Marysville  &  N.  R.  Co.,  243 

U.   S.   36,    61   L.   Ed.   578,   37   Sup. 

Ct.   374;     Coe  v.   Errol,   116  U.   S.       «'«"'  219  U.  S.  498.  55  L.  Ed.  310, 

517.  29  L.  Ed.  715.  6  Sup.  Ct.  475;       ^1  Sup.  Ct.  279;     Louisville  &  N. 

The  Daniel  Ball.  10  Wall.   (U.  S.)       R-  Co.  v.  Central  Stock  Yards  Co.. 

557,  19  L.  Ed.  999.  212  U.  S.  132,  53  L.  Ed.  441,  29  Sup. 

16.  Covington   Stock  Yards  Co.       Ct.  246. 


17.    Southern  Pac.  Terminal  Co. 
V.    Interstate    Commerce   Commis- 


<§>  120]       Transportation  Services  Under  Act.  273 

end  until  delivory  or  an  offor  to  deliver  to  the  eonsij?nee." 
But  the  cari'vin^-  of  ])r()duc*ts  in  wagons  or  other  vehicles 
to  a  railroad  depot  from  the  surrounding  country  is 
no  ])art  of  an  interstate  journey.'"  Nor  is  the  carrying 
of  logs  from  timber  land  to  a  tidewater  point  in  the 
same  state  by  a  logging  railroad  over  its  own  tracks  a 
part  of  interstate  transportation.^" 

§  120.  When  Temporary  Stoppage  or  Interruption 
Changes  Interstate  Character  of  Shipment  into  Intra- 
state and  vice  versa.  The  Act  to  Kegulate  Commerce 
l)rovides  thai  no  break  or  bulk,  stoppage  or  interrup- 
tion made  by  any  carrier  shall  prevent  the  carriage  of 
freight  from  being  and  being  treated  as  one  continuous 
carriage  from  the  place  of  shipment  to  the  place  of 
destination,  unless  such  break,  stoppage  or  interruption 
is  made  in  good  faith  for  some  necessary  purpose  and 
without  any  intent  to  avoid  or  unnecessarily  interrupt 
such  continuous  carriage,  or  to  evade  any  provisions 
of  the  statute.^' 

When,  therefore,  freight  is  delivered  to  a  carrier 
and  is  actually  started  in  the  course  of  transportation 
from  one  state  to  another,  its  interstate  character  com- 
mences and  continues  to  the  point  of  destination--  and 
so  when  freight  is  delivered  to  a  carrier  and  started  in 
the  course  of  transportation  from  one  point  to  another 
in  the  same  state,  its  intrastate  character  then  com- 
mences and  continues  to  the  point  of  destination,  unless 
it  is  know^n  or  intended  by  the  shipper,  either  when 
the  delivery  was  made  or  while  the  movement  is  in 
progress,  that  the  freight  shall  be  carried  to  a  |)oiut 
outside  of  the  state. 

18.  United     States     v.     Union  29   L.   Ed.  715,  6   Sup.  Ct.  475. 
Stock  Yard  &  Transit  Co.  of  Chi-  20.     McCluskey  v.  IMarysville  & 
cago,  226  U.  S.  286,  57  L.  Ed.  226,  N.  R.  Co.,  243  U.  S.  36;    61  L.  Ed. 
33  Sup.  Ct.  83;    Railroad  Commis-  578,  37  Sup.  Ct.  374. 

sion  of  Ohio  v.  WorthinRton.  225  21.     Section  7  of  the  Act  to  Reg- 

U.  S.  101,  56  L.  Ed.  1004,  32  Sup.  ulate  Commerce,  Appendix  A,  in- 

Ct.  653;     Coe  v.   Errol,   116   U.   S.  fra. 

517,  29  L.  Ed.  715,  6  Sup.  Ct.  475.  22.      Section    114,   supra. 

19.  Coe  V.  Errol,  116  U.  S.  517. 

1    Cnntnil    Carriers    IS 


1174  Duties  to  Interstate  Shippers.  [§  120 

Whetlior  a  tomiiorary  stoppage  or  interruption  of 
freight  in  transit  "breaks"  tlie  continuity  of  an  inter- 
state sliipnient  so  that  its  character  is  changed  into 
that  of  an  intrastate  shipment,  or  vice  versa,  depends 
ui)on  tlie  character  of  the  movement  and  not  the  bill- 
ing. Tliis  question  has  been  frequently  raised  in  de- 
termining whether  interstate  or  intrastate  rates  apply, 
and  also  in  taxation  cases'''  wherein  the  states  attempted 
to  tax  property  which  the  owner  claimed  was  under  an 
interstate  shipment.  For  example,  a  carload  of  corn 
was  shipped  from  Hudson,  S.  Dak.,  under  a  bill  of  lading, 
to  Texarkana,  Tex.  Five  days  later  the  corn  was  shipp- 
ed from  Texarkana  to  Goldthwaite,  both  points  in  the 
state  of  Texas,  upon  a-  new  contract.  The  shipment 
j^otween  the  last  two  points  was  held  to  be  intrastate 
in  character.^*  In  another  case,  it  appeared  that  sever- 
al carloads  of  coal  were  transported  from  points  in  Illi- 
nois to  Davenport,  la.,  under  bills  of  lading  calling  for 
delivery  at  Davenport,  where  the  charges  to  that  point 
were  paid.     The  city  of  Davenport  was  a  distributing 

23.  Bacon  v.  People,  227  U.  S.  in  his  possession  with  the  con- 
504,  57  L.  Ed.  615,  33  Sup.  Ct.  299;  trol  of  absolute  ownership.  He 
General  Oil  Co.  v.  Grain,  209  U.  intended  to  forward  the  grain  af- 
S.  211,  52  L.  Ed.  754,  28  Sup.  Ct.  ter  it  had  been  inspected,  graded, 
475.  In  People  v.  State  of  Illinois,  etc.,  but  this  intention,  while  the 
supra,  the  court  said:  "The  grain  remained  in  his  keeping  and 
property  was  held  by  the  plaintiff  before  it  had  been  actually  com- 
in  error  in  Chicago  for  his  own  mitted  to  the  carriers  for  trans- 
purposes  and  with  full  power  of  portation,  did  not  make  it  im- 
disposition.  It  was  not  being  ac-  mune  from  local  taxation.  He  had 
tually  transported  and  it  was  not  established  a  local  facility  in  Chi- 
held  by  carriers  for  transportation.  cago  for  his  own  benefit,  and 
The  plaintiff  in  error  had  with-  while,  through  its  employment, 
drawn  it  from  the  carriers.  The  ^^g  gj-ain  was  there  at  rest,  there 
purpose  of  the  withdrawal  did  not  ^^^g  ^^  reason  why  it  should  not 
alter  the  fact  that  it  had  ceased  ^^  included  with  his  other  prop- 
to  be  transported  and  had  been  ^^^^  ^.^^.^  ^^^^  ^^^^^  .^  ^^  ^^^^^^. 
placed  in  his  hands.     He  had  the  _^^^^  ^^^  ^^^^^.^^  ^^.^^  ^^^  ^^^^ 

privilege  of  continuing  the  trans-  ...,      .    j. 

,       ^,        .  .      .  in    the    usual    way    without    dis- 

portation  under  the  shipping  con-       '"    '""-    "''  ^_  ^ 

tracts,  but  of  this  he  might  avail  crimination." 

himself  or  not  as   he  chose.     He  24.     Gulf,  C.  &  S.  F.  R.  Co.  v. 

might  sell  the  grain  in  Illinois  or  State,  204  U.  S.  403,  51  L.  Ed.  540, 

forward  it,  as  he  saw  fit.     It  was  27  Sup.  Ct.  360. 


<^  120]       Transportation  Services  Under  Act. 


270 


point  for  the  coal  and  llic  ccitainty  in  roi^^ard  to  tlic  sliip- 
nients  ended  at  Davenport.  The  point  wliere  tlie  coal 
was  to  be  shipped  beyond  Davenport,  if  at  all,  was 
determined  after  the  arrival  of  the  coal  at  I)av<'nport. 
The  cars  were  then  shijjjK'd  under  a  new  contract  over 
another  railroad  to  other  cities  in  tlic  state  of  Iowa. 
The  second  shii)inents,  tlic  court  held,  constituted  intra- 
state movements." 

Shipments  of  ^rain  were  made  from  initial  points 
in  Missouri  to  "hold"  tracks  in  Kansas  City,  Mo.,  with 
no  intention  or  knowled<i,-e  on  tiie  part  of  the  shii)])er  or 
carrier  that  the  grain  would  be  moved  beyond  that 
destination  point.  Some  of  the  cars  of  grain,  after  sale 
on  the  floor  of  the  board  of  trade  at  Kansas  City,  were 
then  transported  from  the  "hold"  tracks  to  other  points 
in  another  state.  The  court  held  that  the  interstate 
transportation  commenced  at  the  hold  tracks  and  not 
at  the  initial  points  of  shipments  in  the  interior  of  Mis- 
souri.^*^  Where  cai's  of  coal  were  shipped  and  billed 
from  McAllister,  Okla.,  to  Denison,  Tex.,  the  further 
disposition  of  such   shij^ments  to  be  determined   after 


25.  Chicago,  M.  &  St.  P.  R.  Co. 
V.  State,  233  U.  S.  334,  58  L.  Ed. 
988,  34  Sup.  Ct.  592.  Mr.  Justice 
Hughes  in  this  case  said:  "It  is 
undoubtedly  true  that  the  ques- 
tion whether  commerce  is  inter- 
state or  intrastate  must  be  deter- 
mined by  the  essential  character 
ot  the  commerce  and  not  by  mere 
billing  or  forms  of  contract.  Ohio 
Railroad  Commission  v.  Worthing- 
ton,  225  U.  S.  101;  Texas  &  N.  0. 
R.  Co.  V.  Sabine  Tram  Co..  227  U. 
S.  Ill;  Railroad  Commission  of 
Louisiana  v.  Texas  &  P.  Ry.  Co., 
229  U.  S.  336.  But  the  fact  that 
commodities  received  on  interstate 
shipments  are  reshipped  by  the 
consignees,  in  the  cars  in  which 
they  are  received,  to  other  points 
of  destination,  does  not  necessarily 
establish  a  continuity  of  movement 
or    prevent    the    reshipment    to    a 


point  within  the  same  state  from 
having  an  independent  and  intra- 
state character.  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Texas,  204  U.  S.  403; 
Ohio  Railroad  Commission  v. 
Worthington,  225  U.  S.  101,  109; 
Texas  &  N.  0.  R.  Co.  v.  Sabine 
Tram  Co.,  227  U.  S.  Ill,  129,  130. 
The  question  is  with  respect  to 
the  nature  of  the  actual  movement 
in  the  particular  case;  and  we 
are  unable  to  say  upon  this  rec- 
ord that  the  state  court  has  im- 
properly characterized  the  traffic 
in  question  here.  In  the  light  of 
its  decision,  the  order  of  the  Com- 
mission must  be  taken  as  refei- 
ing  solely  to  Intrastate  transpor- 
tation originating  at  Davenport." 
26.  State  ex  rel.  Chicago,  M.  & 
St.  P.  Ry.  Co.  V.  Public  Service 
Commission  of  Missouri,  269  Mo. 
63,  189  S.  W.  377. 


276  Duties  to  Interstate  Shippers.  [§  120 

reaching  Denison,  a  subsequent  movement  of  the  coal 
from  Denison  to  Waco,  Tex.,  was  intrastate  in  charac- 
ter." A  shipper  delivered  logs  to  a  carrier  at  a  point 
in  Mississippi  for  transportation  to  Batesville,  in  the 
same  state.  A  further  movement  from  Batesville  was 
not  intended  by  the  shipper.  After  a  sale  the  logs  were 
delivered  to  another  carrier  at  Batesville  for  shipment 
to  Memphis,  Tenn.  The  court  held  that  the  interstate 
shipment  commenced  at  Batesville  and  not  at  the  initial 
point  of  delivery. ^^ 

In  a  controversy  as  to  whether  interstate  or  intra- 
state rates  should  be  charged  to  Chicago,  111.,  on  grain 
originating  at  points  in  Illinois,  billed  to  Chicago,  and 
there  stored  in,  or  transferred  through,  elevators  and 
ultimately  moved  therefrom  to  destinations  beyond  the 
state,  the  Interstate  Commerce  Commission  held  that 
the  movement  to  Chicago  was  governed  by  the  state  and 
not  the  interstate  rate.^^  Bolts  and  billets,  originating 
in  Kentucky,  were  moved  by  water  and  rail  to  Paducah, 
Ky.,  where  they  were  manufactured  into  club-turned 
spokes  and  later  shipped  to  Moline,  111.  The  first  move- 
ment was  under  one  contract  and  the  subsequent  trans- 
portation to  Moline  from  Paducah  was  under  a  new 
contract.  The  Commission  held  that  it  had  no  juris- 
diction over  the  rate  for  the  carriage  into  Paducah.^" 

§  121.  When  Interstate  or  Intrastate  Character  of 
a  Shipment  is  not  Changed  by  Temporary  Stoppage 
or  Interruption.  But  when  a  commodity  is  shipped 
from  a  point  in  one  state  to  a  point  in  another,  its 
interstate  character  then  commences,  and  the  various 
mutations   through   which  the   article   passes,  and   the 

27.  Missouri,   K.   &  T.  Ry.  Co.  40    I.    C.    C.    124.      See    also    Mer- 

of  Texas  v.  Pace,  Tex.  Civ.  chants  Exch.  of  St.  Louis  v.  Bal- 

App.  ,  184  S.  W.  1051.  timore  &  0.  R.  Co.,  34  I.  C.  C.  341. 

28.  Batesville  Southwestern  R.  30  Mutual  Wheel  Co.  v.  Nash- 
Co.  V.  Mims,  111  Miss.  574,  71  So.  ville,  C.  &  St.  L.  R.  Co.,  40  I.  G. 
827.  C.  612. 

29.  Illinois   Grain   to   Chicago, 


§  121]       Transporta'jion  Services  Under  Act.  277 

liaiidlino:s  whioli  it  lUKlori^^oos  wliile  in  transit,  are 
nieroly  incidental  to  such  an  interstate  movement. ^^ 

For  example,  where  milk  was  shipped  from  several 
points  in  New  York  to  Boston,  Mass.,  the  fact  that  it 
was  inspected,  pasteurized,  refrigerated  and  transferred 
to  other  cars  at  Eagle  Bridge,  N.  Y.,  to  be  further  ti'ans- 
])ort('d  to  Boston,  did  not  render  the  shipment  from  the 
initial  points  to  Eagle  Bridge  intrastate.''-  In  another 
case  it  appeared  that  for  several  years  tie  contractors, 
residing  and  doing  business  in  Indiana,  bought  and 
ship])ed  ties  from  several  points  in  Missouri  to  eastern 
destinations,  usually  by  way  of  Cairo,  111.  After  a  re- 
duction in  the  intrastate  rates  on  ties  in  Missouri,  the 
contractors  bought  a  yard  at  Commerce,  Mo.,  directly 
across  the  Mississippi  river  from  Cairo,  and,  thereafter, 
shipped  the  ties  from  the  initial  points  in  Missouri  to 
Commerce  for  inspection  and  assortment.  The  ties  were 
unloaded  at  Commerce,  inspected,  culled,  and  then  ship- 
ped from  Commerce  to  Cairo  on  barges  and  thence  to  the 
eastern  destination  points.  The  Missouri  Supreme 
Court  held  that  the  intrastate  rate  did  not  apply  from 
the  initial  points  to  Commerce  as  the  shippers  knew  and 
intended  that  the  ties  would  eventually  go  out  of  the 
state.  The  interstate  character  of  the  shij^ments,  it 
was  held,  commenced,  from  the  initial  points  in  Mis- 
souri and  continued  to  the  destination  points  on  eastern 
railroads.^^ 

Uncompressed  cotton,  purchased  at  Albertville,  Ala., 
for  export  and  for  sale  outside  of  the  state  of  Alabama, 
was  shipped  to  Birmingham,  Ala.,  where  the  cotton  was 
unloaded,  compressed,  and  then  rebilled  and  reshipped  in 

31.  Pine  Belt  Lumber  Co.  v.  Transit  Rates,  17  I.  C.  C.  113;  In 
Gulf  &  S.  I.  R.  Co.,  33  I.  C.  C.  117;  re  Alleged  Unlawful  Rates  and 
Mixed  Car  Dealers'  Ass'n  v.  Del-  Practices  in  Transportation  of  Cot- 
aware,  L.  &  W.  R.  Co.,  33  I.  C.  C.  ton,  8  I.  C.  C.  121;  Duluth-Superi- 
133;  Liberty  Mills  v.  Louisville  or  Milling  Co.  v.  Northern  Pac.  R. 
&  N.  R.  Co.,  23  1.  C.  C.  182;  In  re  Co.,  152  Wis.  528,  140  N.  W.  1105. 
Substitution  of  Tonnage,  18  I.  C.  32.  Hood  &  Sons  v.  Delaware  & 
C.  280;  Merchants  Cotton  Press  &  H.  Co.,  17  I.  C.  C.  15. 
Storage  Co.  v.  Illinois  Cent.  R.  Co.,  33.  Lusk  v.  Atkinson,  268  Mo. 
17   I.    C.   C.    98;     In    re   Milling-in  109,  ISG  S.  W.  703. 


278  Duties  to  Interstate  Shippees.  [§121 

other  cars  to  New  Orleans,  La.  The  entire  transporta- 
tion from  Albertville  to  New  Orleans,  it  was  held,  consti- 
tuted an  interstate  shipment,  and  the  intrastate  rate 
was  not  applicable  between  Albertville  and  Birming- 
ham.^* A  passenger,  having  baggage  to  ship  from  St. 
Francis,  Ark.,  to  Delta,  Mo.,  purchased  a  ticket  to  Bernie, 
Mo.,  an  intermediate  point,  and  checked  his  goods  to 
that  station.  Upon  arrival  at  Bernie,  he  bought  an- 
other ticket  to  Delta  and  rechecked  the  baggage  to 
Delta.  The  goods  were  destroyed  in  a  car  at  Bernie, 
after  being  rechecked.  The  shipment  throughout,  from 
St.  Francis  to  Delta,  was  interstate  and  the  tariffs  on 
file  with  the  Interstate  Commerce  Commission  applied 
to  the  goods  while  in  transit  even  between  the  two 
Missouri  points.^^ 

Where  commodities  were  shipped  from  a  point  in 
Louisiana  to  New  Orleans,  La.,  under  a  bill  of  lading 
calling  for  a  delivery  at  New  Orleans,  but  in  fact  in- 
tended by  the  shippers  to  be  exported  to  foreign  coun- 

34.  Alabama  Great  Southern  R.  the  time  the  cotton  left  Albertville 
Co.  V.  George  H.  McFadden  &  Bros.,  until  its  arrival  at  New  Orleans. 
232  Fed.  1000,  in  which  the  court  It  was  continuously  in  the  pos- 
said:  "I  fail  to  see  how  the  ship-  session,  custody,  and  control  of  the 
ments  from  Albertville  to  Birming-  carrier,  and  the  stoppage  of  the 
ham,  under  the  circumstances  ^f  cotton  at  Birmingham  for  com- 
the  present  case,  can  be  construed  pression,  still  in  the  possession  of 
as  interstate.  The  stoppage  in  the  carriers,  was  merely  for  a 
transit  for  compression  at  Birm-  service  incidental  to  its  transit 
ingham,  the  assembling  of  the  cot-  over  the  entire  interstate  route, 
ton  originating  at  Albertville  with  That  the  essential  character  of  the 
other  cotton  purchased  at  Birming-  commerce,  not  its  mere  accidents, 
ham  and  other  points  in  Alabama,  such  as  its  billing,  its  handling 
and  the  subsequent  routing  of  the  and  concentration  at  Birmingham, 
compressed  cotton  to  points  de-  or  the  loss  of  identity  of  the  actual 
termined  by  the  defendants  ac-  cotton  shipped  from  Albertville, 
cording  to  their  trade  contracts,  determines  its  interstate  character, 
do  not  relieve  the  shipments  orig-  is  no  longer  open  to  dipute." 
inating  at  Albertville  and  billed  35.  Reynolds  v.  St.  Lcuis  South- 
to  Birmingham,  and  subsequent-  western  R.  Co.,  195  Mo.  App.  213, 
ly  billed  from  Albertville  or  Attal-  190  S.  W.  423.  Contra,  but  erro- 
la  to  New  Orleans,  of  their  charac-  neous:  Kansas  City  Southern  Ry. 
ter  as  interstate  commerce.  There  Co.  v.  Brooks,  84  Ark.  233,  105  S. 
was  no  change  of  ownership  from  W.  93. 


§  \'2'2\       TiuNsi'oirrATioN  Slkvicks  L'xdku  Act.  279 

tries,  the  cars  romainiiiu'  on  tlio  Irar-ks  at  New  r)rl(>ans 
for  several  days  witiiout  tlic  usual  demurrage  eliar^^es 
and  then  unloaded  from  the  cars  and  put  on  board  ships 
for  foreign  countries,  such  shipments  did  not  constitute 
intrastate  inovcnients  between  the  two  points  in  T^ouisi- 
ana  so  that  tlie  state  rate  ini<>-ht  be  api)lied  thereto.^" 
An  oil  refining  company  shi))pinft'  oil  fioni  a  point  in 
Kansas  to  a  point  in  Okhdioma,  in  order  to  tak(!  ad- 
vantage of  the  lowei'  intrastate  rate  of  Kansas,  shi])pod 
the  oil  to  another  ])oint  in  Kansas,  close  to  tlie  sta1<'  line, 
where  it  employed  an  agent  for  the  purpose  of  re- 
billing  the  oil  to  the  Oklahoma  destination  point.  The 
carrier  refused  to  carry  the  oil  from  the  initial  point 
in  Kansas  to  the  delivering  ])oint  in  ()klalioma  unless 
flic  interstate  rate  was  ])aid  for  the  entire  movement. 
'The  Interstate  Commerce  Commission  held  that  the 
oil  refining  company  was  attempting  to  evade  the  provi- 
sions of  the  Interstate  Commerce  Act  and  Ihal  Hie  inter- 
state rate  applied.'' 

§  122.  Sale  and  Delivery  of  Coal  f.o.b.  Cars  at 
Mine  for  Transportation  to  Purchasers  Outside  the 
State.  When  coal  is  sold  and  delivered  f.  o.  b,  at  a 
mine  for  transportation  to  ])urchasers  in  other  states, 
the  commerce  involved  is  interstate.  The  furnishing 
of  cars,  therefore,  for  this  service,  as  needed  and  re- 
(|uesl('d  l)y  the  mine  owner,  is  an  essential  step  in  the 
intended  movement  of  the  coal  from  one  state  to  an- 
other. A  movement  thus  initiated  is  interstate,  and  the 
facilities  required  are  instrumentalities  of  interstate 
commerce. ^^ 

36.  Railroad  Commission  of  896.  in  wliicli  Mr.  .Justice  Hughes, 
Louisiana  v.  Texas  &  P.  R.  Co.,  for  tlae  Court,  said:  "In  consider- 
229  U.  S.  336,  57  L.  Ed.  1215,  33  ing  the  right  of  the  plaintiff  to 
Sup.  Ct.  837.  maintain   this   action,    despite   the 

37.  Kanotex  Refining  Co.  v.  proceeding  before  the  Commission. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  34  I.  an  initial  question  is  presented  as 
C.  C.  271.  to  the  nature  of  the  commerce  in- 

38.  Pennsylvania  R.  Co.  v.  volved.  It  appeared,  as  stated  "r/ 
Clark  Bros.  Coal  Min.  Co.,  238  U.  the  state  court,  that  practically  all 
S.  456,  59  L.  Ed.  1406,  35  Sup.  Ct.  the  coal  mined  by  the  plaintiff  was 


280 


Duties  to  Interstate  Shippers. 


[§  122 


In  overruling  the  decision  of  the  Supreme  Court 
of  Pennsylvania,^^  holding  that  as  the  coal  was  sold 
at  the  mine  to  purchasers  in  other  states,  the  commerce 
involved  was  not  interstate,  the  United  States  Supreme 


sold  f.  0.  b.  cars  at  the  mines. 
About  ninety-five  or  ninety-eight 
per  cent  wt-s  sold  in  this  way. 
Hence,  it  is  said,  it  is  'not  subject 
to  Interstate  Commerce  regula- 
tion.' We  do  not  understand  that 
it  is  questioned  that  a  very  large 
part  of  the  damages  recovered  in 
this  action  pertain  to  coal  which 
with  a  fair  method  of  car  distribu- 
tion would  have  been  shipped  from 
the  mines  to  purchasers  in  other 
States.  There  is  no  controversy 
as  to  the  course  of  business.  The 
plaintiff  sold  to  persons  within 
and  without  the  State  of  Pennsyl- 
vania. The  coal  was  loaded  on 
cars  to  be  transported  to  various 
points  of  destination  not  only  in 
Pennsylvania  but  in  other  States. 
The  transportation  to  other  States 
absolutely  depended  upon  a  proper 
supply  of  cars,  and  it  is  manifest 
that  unjust  discrimination  against 
the  plaintiff  in  car  distribution 
would  improperly  obstruct  the 
freedom  of  such  transportation, 
in  which  the  plaintiff  had  a  direct 
interest.  And  the  question  pre- 
sented is  whether  unjust  discrim- 
ination of  this  character  is  a  sub- 
ject which  falls  without  the  scope 
of  the  jurisdiction  conferred  upon 
the  Interstate  Commerce  Commis- 
sion, that  is,  whether  there  is  an 
absence  of  such  jurisdiction  merely 
because  the  plaintiff  sold  its  prod- 
uct, which  was  to  be  transported 
to  other  States,  f.  o.  b.  at  its  mines. 
This  question  must  be  answered  in 
the  negative.  In  determining 
whether  commerce  is  interstate  or 
intrastate,  regard  must  be  had  to 
its  essential  character.     Mere  bill- 


ing, or  the  place  at  which  title 
passes,  is  not  determinative.  If 
the  actual  movement  is  interstate, 
the  power  of  Congress  attaches  to 
it  and  the  provisions  of  the  Act 
to  Regulate  Commerce,  enacted  for 
the  purpose  of  preventing  and  re- 
dressing unjust  discrimination  by 
interstate  carriers,  whether  in 
rates  or  facilities,  apply.  *  *  * 
Thus,  in  varying  circumstances, 
the  same  principle  has  been  ap- 
plied in  these  cases  and  in  the 
others  cited;  and  that  principle 
is  that  the  jurisdiction  of  tlie  Com- 
mission is  determined  by  the  es- 
sential character  of  the  commorca 
in  question.  In  the  present  case, 
to  repeat,  it  appears  that  for  the 
purpose  of  filling  contracts  with 
purchasers  in  other  States,  coal  ia 
delivered  f.  o.  b.  at  the  mines  for 
transportation  to  such  purchasers. 
The  movement  thus  initiated  is  an 
interstate  movement  and  the  facil- 
ities required  are  facilities  of  in- 
terstate commerce.  A  very  large 
part  of  what  in  fact  is  the  inter- 
state commerce  of  the  country  is 
conducted  upon  this  basis  and  the 
arrangements  that  are  made  be- 
tween seller  and  purchaser  with 
respect  to  the  place  of  taking  title 
to  the  commodity,  or  as  to  the  pay- 
ment of  freight,  where  the  actual 
movement  is  interstate,  does  not 
affect  either  the  power  of  Con- 
gress or  the  jurisdiction  of  the 
Commission  which  Congress  has 
established." 

39.  Sonman  Shaft  Coal  Co.  v. 
Pennsylvania  R.  Co.,  241  Pa.  487, 
88  Atl.  746. 


§  123]       Transportation  Services  Under  Act.  281 

Court  said:*"  "The  coal  company  sold  its  coal  f.  o.  b. 
cars  at  the  mine,  and  wiicn  llic  cars  wci'e  loaded,  the 
coal  was  promptly  forwarded  to  the  purchasers  at  i)oints 
within  and  without  the  state, — largely  to  points  in  other 
states.  This  was  well  understood  by  both  companies, — 
by  the  coal  company  when  it  asked  for  cars  and  by  the 
railroad  company  when  it  supplied  them.  Cars  were 
not  requested  or  furnished  merely  to  be  used  in  lioldinsj 
or  storing  coal,  but  always  to  be  employed  in  its  immedi- 
ate transportation.  While  furnishing  some  cars  for  this 
service,  the  railroad  company  failed  to  furnish  as  many 
as  the  coal  company  needed  and  requested.  It  is  plain 
that  supplying  the  requisite  cars  was  an  essential  step 
in  the  intended  movement  of  the  coal  and  a  part  of  the 
commerce — whether  interstate  or  intrastate — to  which 
that  movement  belonged." 

§  123.  Shipments  from  Points  in  One  State  to  a 
Port  of  Transshipment  in  Same  State  for  Export  In- 
cluded. The  Interstate  Commerce  Commission  has  con- 
trol over  trans|)ortation  of  property  shipped  from  any 
place  in  the  United  States  to  a  foreign  country  and 
carried  from  such  place  to  a  port  of  transshipment,  or 
shipped  from  a  foreign  country  to  any  place  in  the 
United  States  and  carried  to  such  place  from  a  port  of 
entry  in  the  United  States  or  an  adjacent  foreign  coun- 
try. ' 

The  purpose  of  the  statute  was  to  give  the  Com- 
mission authority  solely  over  the  inland  portion  of  a 
shipment  to  a  foreign  country,  that  is,  as  to  outgoing 
shi])ments  from  the  place  of  origin  to  the  port  of  trans- 
shipment, and  as  to  incoming  shipments,  from  the  port 
of  entrj^  to  the  point  of  destination  in  the  United  States. 
This  control  applies  even  when  the  point  of  origin  and 
the  port  of  transshipment  or  the  port  of  entry  and  the 
point  of  destination  are  in  the  same  state. 

40.    Pennsylvania  R.  Co.  v.  Son-      man  Shaft  Coal  Co.,  242  U.  S.  120. 

61  L.  Ed.  188.  37  Sup.  Ct.  46. 


282  Duties  to  Interstate  Shippers.  [§  123 

When,  therefore,  an  article  of  commerce  is  carried 
from  auy  point  in  a  state  to  a  port  of  transshipment  in 
the  same  state,  but  intended  by  the  shipper  to  be  ex- 
ported to  foreign  countries,  or  where  any  article  of  com- 
merce shipped  from  a  foreign  country  is  transported 
from  a  port  of  entry  to  the  point  of  destination  in  the 
same  state  in  a  continuous  carriage,  such  shipments 
constitute  foreign  commerce,  and  are  subject  to  the 
Interstate  Commerce  Act,  tlie  inland  part  of  the  move- 
ment being  under  the  jurisdiction  of  the  Interstate 
Commerce  Commission  and  not  the  laws  of  the  state." 
For  example,  a  shipment  from  a  point  in  Louisiana 
to  New  Orleans,  La.,  a  port  of  transshipment,  of  lumber 
destined  to  a  foreign  country,  is  not  subject  to  the  rates 
fixed  by  the  state  between  the  two  points  in  Louisiana, 
but  is  under  the  control  of  the  Interstate  Commerce 
Commission.*^ 

§  124.  Shipments  from  One  Foreign  Country  to 
Another  Through  the  United  States  Beyond  Control 
of  Commission.  The  Act  to  Regulate  Commerce  aj)- 
plies  to  carriers  engaged  in  transportation  from  any 
place  in  the  United  States  to  an  adjacent  foreign  country, 
or  from  any  place  in  the  United  States  through  a  for- 
eign country  to  any  other  places  in  the  United  States, 
and  to  the  transportation  of  property  shipped  from  any 
place  in  the  United  States  to  a  foreign  country  and 
to  be  carried  from  such  place  to  a  port  of  transshipment, 
or  shipped  from  a  foreign  country  to  any  place  in  the 
United  States  and  carried  to  such  place  from  a  port  of 

41.    Texas  &  P.  R.  Co.,  v.  Inter-  of  Louisiana  Ry.  &  Nav.  Co.,  22  I. 

state   Commerce   Commission,    162  c.  C.  558;    Cosmopolitan  Shipping 

U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Co.  v.  Hamburg-American   Packet 

Ct.  666;  Arkansas  Pass  Channel  &  q^    ^g  j  c.  c.  266;  In  re  Investiga- 

Dock  Co.  V.  Galveston,  H.  &  S.  A.  ^.^^  ^^  ^^^^^^  rj.^^^^  ^^    Co.,  2  I. 

Ry.    Co.,    27    I.    C.    C.    403;    In    re  ^    ^    ^^^ 

Wharfage  Charges  at  Galveston,  26  '        '                           .     . 

X    ^    ^^nr     o                     f   Tvw.r  42.    Railroad      Commission      of 

I    C.   C.    695;    Commerce   of   New 

York  V.  New  York,  C.  &  H.  R.  Co..  I^ouisiana  v.  Texas  &  P.  R.  Co.,  229 

24  I.  C.  C.  55;    In  re  Advance  o.i  H.  S.  336.  57  L.  Ed.  1215,  33  Sup. 

Cotton.  23  I.  C.  C.  404;  In  re  Rates  Ct.  837. 


<§.  125 J       TiiANSpoKTATiuN  SiusvicEs  Undeu  Act.  '2H'i 

entry  oithor  in  tlic  (^nitcd  Slates  or  in  ;iii  nd.jaccnt   foi"- 
oip:n  foiintry. 

Tho  transi)oi'tati()ii  ol"  <^(j()(ls  from  a  foreign  (-(miiti-y 
llirou^h  the  United  States  to  destination  points  in  an 
adjaeont  foreign  country  is  not,  therefore,  under  the 
jurisdiction  of  the  Cominission.^''  Tlius,  tlio  Commission 
had  IK)  i)ower  to  order  a  reparation  for  overcharges  in 
tlio  siiipm(»nt  of  sugar  from  (iermany  to  Mexico  and 
covering  tliat  part  of  tlie  movement  between  New  Or- 
leans, La.,  and  El  Paso,  Tex.**  Neither  has  the  Com- 
mission the  power  to  prescribe  tJie  rate  for  the  trans- 
portation of  a  commodity  in  bond  from  a  point  in  Mexi- 
co through  the  United  States  to  another  point  in  Mexi- 
co.*^ 

§125.  Regulation  of  Terminal  Charges,  Services 
and  Facilities  for  Interstate  Shipments.  Interstate 
transportation  covers  all  stages  of  a  sliiinucnt  from  the 
time  of  delivery  of  the  freight  to  the  carrier  until  the 
shipment  is  finally  delivered  to  the  consignee  at  the 
point  of  destination.*'^  This  principle  was  recognized 
by  Congress  in  the  passage  of  the  Interstate  Commerce 
Act  when  transportation  was  defined  and  declared  to 
include  all  services  in  connection  with  the  receipt,  de- 
livery and  storage  of  interstate  shipments.  The  regula- 
tion, therefore,  of  terminal  charges,  services  and  facili- 
ties for  interstate  shipments  is  clearly  within  the  scope 

43.  United  States  v.  Philadel-  1001,  32  Sup.  Ct.  657:  Southern  Ry. 
phia  &  R.  Ry.  Co.,  188  Fed.  484.  Co.  v.  Reid  &  Beam,  222  U.  S.  444, 

44.  ]\Iorgan's  L.  &  T.  R.  &  S.  S.  56  L.  Ed.  263,  32  Sup.  Ct.  145; 
Co.,  35  I.  C.  C.  492.  Southern  R.  Co.  v.  Reid,  222  U.  S. 

45.  Canales  v.  Georgia,  H.  &  S.  424,  56  L.  Ed.  257.  32  Sup.  Ct.  140; 
A.  Ry.  Co.,  37  I.  C.  C.  573.  McNeill   v.    Southern    R.    Co.,    202 

46.  Chicago,  R.  I.  &  P.  R.  Co.  U.  S.  543,  50  L.  Ed.  1142,  26  Sup. 
V.  Hard  wick  Farmers  Elevator  Co.,  Ct.  722;  Interstate  Commerce  Com- 
226  U.  S.  426,  57  L.  Ed.  284,  33  Sup.  mission  v.  Chicago,  B.  &  Q.  R.  Co., 
Ct.  174,  46  L.  R.  A.  (N.  S.)  203;  186  U.  S.  320,  46  L.  Ed.  1182.  22 
United  States  v.  Union  Stock  Yard  Sup.  Ct.  824:  Covingron  Stock- 
&  Transit  Co.  of  Chicago,  226  U.  Yards  Co.  v.  Keith,  139  U.  S.  128, 
S.  286,  57  L.  Ed.  226,  33  Sup.  Ct.  35  L.  Ed.  73,  11  Sup.  Ct.  461;  Coe 
83;  Southern  R.  Co.  v.  Burlington  v.  Errol,  116  U.  S.  517,  29  L.  Ed. 
Lumber  Co.,  225  U.  S.  99,  56  L.  Ed.  715,  6  Sup.  Ct.  475. 


284  Duties  to  Interstate  Shippers.  [§  125 

of  the   Interstate   Commerce  Act   and   the   jurisdiction 
of  the  Interstate  Commerce  Commission/^ 

The  states  still  have  the  power  to  make  rules  and 
regulations  as  to  terminal  service  in  connection  with 
and  relating  to  intrastate  transportation;*^  but  they 
have  no  power  over  cars  moving  in  interstate  commerce. 
''As  legislation  concerning  the  delivery  of  cars,"  said 
the  Supreme  Court,*"  ''for  the  carriage  of  interstate 
traffic  was  clearly  a  matter  of  interstate  commerce  regu- 
lation, even  if  such  subject  was  embraced  within  that 
class  of  powers  concerning  which  the  State  had  a  right 
to  exert  its  authority  in  the  absence  of  legislation  by 
Congress,  it  must  follow  in  consequence  of  the  action 
of  Congress  to  which  we  have  referred  that  the  power 
of  the  State  over  the  subject-matter  ceased  to  exist 
from  the  moment  that  Congress  exerted  its  paramount 
and  all  embracing  authority  over  the  subject.  We  say 
this  because  the  elementary  and  long  settled  doctrine 
is  that  there  can  be  no  divided  authority  over  interstate 
commerce  and  that  the  regulations  of  Congress  on  that 
subject  are  supreme.  It  results,  therefore,  that  in  a 
case  where  from  the  particular  nature  of  certain  sub- 
jects the  State  may  exert  authority  until  Congress  acts 
under  the  assumption  that  Congress  by  inaction  has 
tacitly  authorized  it  to  do  so,  action  by  Congress  de- 
stroys the  possibility  of  such  assumption,  since  such 
action,  when  exerted,  covers  the  whole  field  and  renders 

47.  Louisville  &  N.  R.  Co.  v.  Yards  Co.  v.  Louisville  &  N.  R.  Co., 
United  States,  238  U.  S.  1,  59  L.  192  U.  S.  568,  48  L.  Ed.  565,  24 
Ed.  1177,  35  Sup.  Ct.  696;  Penn-  Sup.  Ct.  339;  Interstate  Commerce 
sylvania  Co.  v.  United  States,  2.36  Commission  v.  Detroit,  G.  H.  &  M. 
U.  S.  351,  59  L.  Ed.  616,  35  Sup.  Ry.  Co.,  167  U.  S.  633,  42  L.  Ed. 
Ct.   370.  306,  17  Sup.  Ct.  986;   Gulf,  C.  &  S. 

48.  Baltimore  &  O.  R.  Co.  v.  F.  R.  Co.  v.  Hefley,  158  U.  S.  98. 
United  States  ex  rel.  Pitcairn  Coal  ?id  L.  Ed.  910,  15  Sup.  Ct.  802. 

Co.,  215  U.  S.  481,  54  L.  Ed.  292,  49.    Chicago,  R.  I.  &  P.  R.  Co.  v. 

30  Sup.  Ct.  164;    Interstate  Com-  Hardwick   Farmers    Elevator   Co., 

merce  Commission  v.  Illinois  Cent.  226   U.   S.   426,   57   L.   Ed.   284,   33 

R.  Co.  215  U.  S.  452,  54  L.  Ed.  280,  Sup.   Ct.  174,   46  L.  R.  A.    (N.   S.) 

30    Sup.    Ct.    155;    Central    Stock  203. 


^  127]       Transportation  Services  Under  Act.  285 

the  State  impotent  to  deal  witli  a  subject  over  which 
it  had  no  inlierent  l)ut  only  permissive  power." 

§  126.  Transportation  Wholly  Within  One  State 
Not  Under  Federal  Control.  Under  tlie  commerce 
clause  of  tiie  Constitution,  Congress  has  no  XJO"^ver  to 
regulate  intrastate  commerce,  that  is,  transportation  of 
passengers,  property  or  intelligence  wholly  within  a 
single  state. 

In  conformity,  therefore,  with  the  limitation  upon 
the  power  of  Congress,  Section  1  of  the  Interstate  Com- 
merce Act  provides  that  none  of  its  provisions  shall 
apply  to  the  transportation  of  passengers  or  property, 
or  the  receiving,  delivering,  storing,  or  handling  of 
property  wholly  within  one  state  and  not  shipped  to 
or  from  a  foreign  country  from  or  to  any  state  or  terri- 
tory, nor  to  the  transmission  of  messages  by  telephone, 
telegraph  or  cable  wholly  within  one  state  and  not  trans- 
mitted to  or  from  a  foreign  country  from  or  to  any 
state  or  territory. 

Transportation  wholly  within  one  state  is  not,  there- 
fore, subject  to  the  control  of  the  Commission.^" 

§  127.  Transit  Privileges  Part  of  Transportation 
Under  Control  of  Interstate  Commerce  Commission. 
Prior  to  the  amendment  of  190G  the  Interstate  Com- 
merce Commission  had  no  jurisdiction  to  regulate  the 
various  forms  of  transit  i:)rivileges  granted  to  shippers 
by  carriers,  such  as  milling  of  grain,  the  dressing  of 
lumber,  of  cotton,  etc.,  except  perhaps  when  the  carriers 
practiced  undue  discrimination.^^ 

50.    Houston,  E.  &  W.  T.  R.  Co.  mission  v.  Brimson.  151  U.  S.  447, 

V.  United  States,  234  U.  S.  342,  58  38  U  Ed.  1047,  14  Sup.  Ct.  1125; 

L.  Ed.  1341,  34  Sup.  Ct.  833;  Min-  Hocking  Valley  R.  Co.  v.  New  York 

nesota    Rate    Cases    (Simpson    v.  Coal  Co.,  132  C.  C.  A.  587,  217  Fed. 

Shepard),  230  U.  S.  352,  57  L.  Ed.  727;    Southern  Pac.  Co.  v.  Carap- 

1511,  33  Sup.  Ct.  729,  48  L.  R.  A.  bell,  189  Fed.  696. 

(N.  S.)   1151,  Ann.  Cas.  1916A  18;  51.    Koch  &  Co.  v.  Pennsylvania 

Cincinnati.  N.  O.  &  T.  P.  R.  Co.  v.  R.  Co.,   10  I.  C.  C.   675;    Diamond 

Interstate  Commerce  Commission,  Mills  v.  Boston  &  M.  R.  Co.,  9  I. 

162  U.  S.  184,  40  L.  Ed.  935,  16  Sup.  C.    C.    311;    In    re    Wool,    Hide    & 

Ct.  700:  Interstate  Commerce  Com-  Pelt  Rates,  23  I.  C.  C.  151. 


286  Duties  to  Interstate  Shippers.  [§  127 

But  tlio  definition  of  the  term  "transportation" 
was  amended  so  as  to  include  all  services  in  connection 
with  the  handling  of  property  transported  in  1906,  and 
the  Commission,  since  that  time  has  held  that  transit 
privileges  were  regulations  affecting  the  rate  under  its 
jurisdiction,  and  carriers  may  be  compelled  to  accord 
shippers  the  privilege  upon  the  payment  of  reasonable 
compensation.^^ 

§  128.  Regulation  of  Grain  Elevation  Service  Under 
Federal  Control.  By  the  Amendment  of  1906  the  trans- 
portation subject  to  federal  control  and  the  jurisdiction 
of  the  Interstate  Commerce  Commission,  was  extended 
so  as  to  include  the  subject  matter  of  grain  elevator 
service.  The  statute  makes  it  the  duty  of  the  carrier  to 
provide  and  furnish  all  the  facilities  that  are  a  part  of 
the  transportation  included  within  the  Act,  and  it  is 
required  to  state  in  its  schedules  the  charges  for  all 
privileges  or  facilities  granted  or  allowed. 

If  an  owner  of  property  transported  renders  any 
service  connected  with  such  transportation,  he  may  be 
allowed  a  reasonable  and  just  compensation  therefor. 
It  has  therefore  been  held  that  a  railroad  company  may 
and  must  pay  the  owners  of  elevators  a  reasonable  sum 
for  elevating  grain. ^^  "The  long  mooted  question  as 
to  whether  elevation  was  such  a  part  of  transportation 
as  to  bring  it  within  the  jurisdiction  of  the  Interstate 
Commerce  Commission,"  said  the  Court  in  the  case 
cited,  "was  answered  by  the  act  of  June  29,  1906,  34 
Stat.  L.  584,  590,  c.  3591,  in  which  Congress  declared 
that  'the  term  'transportation'  shall  include  *  *  * 
all     *     *     *     facilities  of  shipment,     *     *     *     irrespec- 

52.    Lewis,   Leonhardt   &   Co.   v.  I   C.  C.  70;  Spiegle  v.  Southern  Ry. 

Southern  R.  Co.,  1^3  CO.  A.  237,  Co.,  25  I.  C.  C.  71;   Transit  Case, 

217  Fed.  321;    Grand  Rapids  &   I.  24  I.  C.  C.  340;  In  re  Wool,  Hide  & 

R.  Co.  V.  United  States,  129  C.  C.  A.  Pelt  Rates,  23  I.  C.  C.  151. 
113,  212  Fed.  577;   Wichita  Board  53.    Union      Pacific     R.     Co.     v. 

of  Trade  v.  Abilene  &  S.  Ry.  Co.,  Updike  Grain  Co.,  222  U.   S.  215, 

29   I.   C.   C.   376;    In   re   Advances  56  L.  Ed.  171,  32  Sup.  Ct.  39. 
Fabrication-in  transit  Charges,   29 


<§.  129]       TRANSPoiiiArioN  Skrvices  Under  Act.  287 

tive  of  owiiersliip,     *     *     *     and   all    services  in   con- 
nection  with    Uie     *     *     *     (.I(.vatiou,    and   transfer   in 
transit     *     *     *     atid  liniKHiiiL;- of  property  transported.' 
Carriers  were   r(M|iiired    'to    i)rovide   and    furnish    such 
transportation  ui)on  reasonable  request  therefor.'     'VUc 
act  recog-nized  that  the  shipper  himself  mift-ht  own  Hie 
elevator  or  other  facility  included  within  the  delinition 
of  transportation.     For  Sec.  4   {'.U  Stat.  590)   provides 
that  'if  the  owner     *     *     *     renders  any   service  con- 
nected with  sncli  transportation,  or  furnishes  any  instru- 
mentality used  therein,  the  charge  and  allowance  there- 
for shall  be  no  more  than   is  just   and  reasonable,'  the 
Commission   being   authorized  to   determine   what   was 
reasonable.     This  act  was  passed  after  the  decision  by 
the   Commission  in   1904    (10   I.    C.   C.    309),   that    the 
Peavey  contract  was  valid,  and  after  the  recommendation 
in  its  report  for  1905   (p.  11),  that  it  should  be  given 
authority  to  determine  whether  the  allowance  paid  to 
the  owner  was  just.     The  statute  must  be  taken  as  a 
legislative   recognition    of    the    long-continued    practice 
and  a  declaration  tl>at  the  incidental  advantage  derived 
by  the  owner  was  not  undue.     In  pursuance  of  the  au- 
thority  thus  expressly   conferred   the   Interstate   Com- 
merce Commission,  in  April,  1907  (12  I.  C.  C.  86),  fixed 
the  allowance  for  elevating  grain  at  %  of  a  cent  per 
hundred  pounds,  being  actual  cost,  with  no  allowance 
whatever  for  profit.     Its  final  order   (14  I.  C.  C.  315), 
])rohibiting  any  payment  to  the  owner  who  performed 
this  transportation  service  was  reversed,  as  being  be- 
yond the  jurisdiction  of  the  Commission,  because  Con- 
gress had  expressly  permitted  such  payment  to  be  made 
(Interstate  Commerce  Commission  v.  Diffenbangh,  Same 
v.  Peavey,   ante.  p.   42).   The  language   of   the   statute 
and  this  decision  answer  the  Union  Pacific's  contention 
that  it  was  unlawful  to  pay  these  comjianies  for  trans- 
portation services." 

§  129.  Loading,  Dunnage  and  Special  Preparation 
of  Freight  Cars  for  Shipments  of  Particular  Commodi- 
ties.    Whih^   the   tci'ni    "transportation,"    as   driiiicd    in 


288 


Duties  to  Inteestate  Shippers. 


[§  129 


tlie  Act,  the  subject  matters  under  which  the  carrier  may 
be  compelled  to  furnish,  includes  all  services  in  con- 
nection with  the  receipt,  deliver}^,  elevation,  ventilation, 
refrigeration  or  icing,  and  handling  of  the  property 
transported,  there  are  many  elements  in  the  special 
preparation  of  freight  cars  for  the  shipment  of  particu- 
lar commodities  which  are  not  included  within  the  scope 
of  the  transportation  facilities  which  the  carriers  must 
furnish,  and  which  must  be  supplied  by  the  shippers 
themselves  without  any  allowances  therefor.^* 


54.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  United  States,  232  U.  S.  199,  58 
L.  Ed.  568,  34  Sup.  Ct.  291,  in 
which  the  Court  said:  "Sometimes 
the  shipper,  as  here,  insists  on  the 
right  to  load  and  provide  necessary 
appliances.  At  other  times  he  de- 
mands that  such  service  and  appli- 
ances be  furnished  by  the  railroad 
company.  Conversely  the  carriers 
sometimes  claim,  as  here,  the  right 
to  furnish  service  and  facilities, 
while  in  other  cases  insisting  that 
one  or  both  must  be  supplied  by 
the  consignor.  Cf.  National  Lum- 
ber Dealers  Association  v.  Atlantic 
Coast  Line,  14  L  C.  C.  154;  Schultz 
V.  Southern  Pacific,  18  I.  C.  C.  234; 
In  re  Allowance  for  Lining  and 
Heating  Cars,  26  I.  C.  C.  681; 
25  I.  C.  C.  497.  These  inconsistent 
and  conflicting  demands  serve 
to  emphasize  the  fact  that,  before 
the  haul  actually  begins,  the  right 
or  duty  of  each  party,  where  not 
absolutely  fixed  by  statute,  must 
be  decided  with  reference  to  the 
special  facts  of  each  case.  As  a 
general  rule,  the  carrier  loads 
all  freight  tendered  in  less  than 
carload  lots  while  the  consignor 
loads  in  all  cases  where,  for  his 
convenience,  the  car  is  placed  at 
his  warehouse  or  on  public  team 
tracks.  This  practice  has  grown 
up  not  only  because  the  work  can 


be  more  satisfactorily  performed 
by  the  owner,  but  also  because  it 
is  impossible  for  railroad  compa- 
nies economically  to  load  cars  at 
private  warehouses  or  on  those 
tracks  where  vehicles  of  the  con- 
signor or  consignee  come  and  go 
at  the  direction  of  the  owner.  25 
I.  C.  C.  490.  But  loading  may  in- 
volve more  than  the  mere  placing 
of  the  freight  on  the  car,  sinoe 
the  character  of  the  shipment  may 
be  such  as  to  require  the  furnish- 
ing and  placing  of  stakes,  racks, 
blocks  and  binders  needed  to  make 
the  transportation  safe;  or,  the 
freight  may  be  such  as  to  require 
a  special  covering,  packing,  icing 
or  heating,  in  order  to  preserve 
the  merchandise  in  condition  fit 
for  use  at  the  end  of  the  journey. 
Who  is  to  furnish  these  needed 
facilities,  may  be  quite  as  un- 
certain as  who  is  to  place  the 
freight  on  the  car,  and  can  only 
be  determined  by  considering  the 
character  of  the  shipment,  the 
place  where  the  loading  begins, 
and  who  can  most  economically 
perform  the  service  required. 
Neither  party  has  a  right  to  in- 
sist upon  a  wasteful  or  expensive 
service  for  which  the  consumer 
must  ultimately  pay.  The  interest 
of  the  public  is  to  be  considered 
as   well   as   that   of  shippers   and 


§  129]       Transportation  Services  Under  Act.  289 

No  hard  and  fast  rule  has  been  established  as  to 
who  shall  supi)ly  these  aceessorial  services  necessary  to 
prepare  freight  cars  for  shipment,  but  tlie  respective 
duties  and  rights  of  the  shii)pers  and  carriers  in  con- 
nection thereto  can  only  be  determined  by  considering 
the  character  of  the  shipment,  the  place  where  the 
loading  begins  and  who  can  most  economically  perform 
the  service.  The  interests  of  the  public  as  well  as  the 
carrier  are  to  be  considered,  and  the  rights  and  duties 
of  each  party  when  not  controlled  by  statute,  must  be 
decided  largely  with  reference  to  the  special  facts  of 
each  case.  Generally,  however,  where  special  prepara- 
tion is  required  to  fit  a  car  for  the  shipment  of  a  par- 
ticular commodity,  the  duty  devolves  upon  the  shipper." 
For  example,  the  duty  to  provide  stakes  to  be  used  in 
shipping  lumber  on  flat  cars  where  it  appeared  that 
it  was  impracticable  to  provide  a  permanent  stake  which 
would  be  a  part  of  the  car  itself,  it  was  held,  should 
not  be  placed  upon  the  carrier.^" 

Carriers  should  not  be  compelled,  it  was  held  in 
another  case,  to  furnish  the  lining  on  the  walls  of  the 
car  and  the  j^adding  on  the  floor  necessary  to  properly 
transport  flour  in  cotton  sacks  so  that  the  sacks  might 
not  be  torn  through  friction  with  the  sides  and  floor  of 
the  car."  The  furnishing  of  such  a  protection  partakes 
of  the  nature  of  a  private  packing  rather  than  of  a  public 
equipment.  On  the  other  hand,  where  perishable  freight 
moves  regularly  and  in  sufficient  volume  to  justify  it,  the 
carrier  is  required  to  furnish  special  etiuipment  for 
protecting  certain  kinds  of  traffic  from  freezing.^®     The 

carriers — their  rights  in  turn  hav-  Co.,    26    I.    C.    C.    245;    Davies    v. 

Ing  been  adjusted  by  a  reduction  LouisviUe  &  N.  R.  Co.,  18  I.  C.  C. 

In  the  rate,  if  the  loading  is  done  540. 

in  whole  or  in  part  by  the  shipper;  56.    National  Wholesale  Lumber 

and   by   an    increase   in   the    rate  Dealers'  Ass'n.  v.  Atlantic  C.  L.  R. 

where  the  loading  is  done  in  whole  Co.,  14  I.  C.  C.  154. 

or  in  part  by  the  carrier."  57.    Southwestern  Missouri  Mil- 

55.    New    York    State    Shippers  lers'  Club  v.  St.  Louis  &  S.  F.  R. 

Protective    Ass'n     v.    New    York  Co.,  26  I.  C.  C.  245. 

Cent.  &  H.  River  R.  Co.,  30  I.  C.  .58.    In  re  Advances  Protection  of 

C.  437;  Southwestern  Missouri  Mil-  Potato  Shipments  in  Winter,  29  I. 
lers'  Club  v.  St.  Louis  &  S.  F.  R. 

1    Cuutrol    CanitTs    19 


290  Duties  to  Interstate  Shippers.  [*§  129 

service  of  loading,  furnishing'  material  and  placing  in 
cars  is  an  additional  service  over  and  above  the  trans- 
portation for  which  the  carrier  is  entitled  to  receive 
compensation,  and  hence  a  tariff  providing  that  the  car- 
rier would  load  fruits  and  vegetables,  supply  and  place 
the  dunnage  and  braces  at  the  expense  of  the  shipper 
was  approved  by  the  Commission.'^^ 

§  130.  Weighing  of  Interstate  Shipments  of  Freight 
Under  Federal  Control.  As  the  amendment  of  1906  in- 
cluded all  service  in  connection  with  the  receipt,  de- 
livery and  handling  of  property  transported  in  inter- 
state and  foreign  commerce,  the  charges  for  weighing 
freight  are  under  federal  control.  The  weighing  service 
is  an  incident  to  the  transportation  service  as  it  is 
used  in  the  computation  of  freight  charges.  The  Inter- 
state Commerce  has,  therefore,  jurisdiction  to  determine 
the  reasonableness  and  nondiscriminatory  character  of 
weighing  service.'*'^ 

§  131.  Regulations  and  Rules  Concerning  Baggage  of 
Interstate   Passengers    Under   Control    of   Commission. 

Under  the  common  law,  the  decisions  of  the  courts  as  to 
what  was  baggage,  and  what  was  the  extent  of  the 
carriers'  liability   were   not   uniform."     The   rights  of 

C.  C.  504;    Protection  of  Potatoes  923,  46  S.  W.  421;  Kansas  City,  Ft. 

in  Winter,  26  I.  C.  C.  681.  S.   &  M.   Ry.   Co.   v.   McGahey,   63 

59.  In  re  Advances  Dunnage  Al-  Ark.  344,  36  L.  R.  A.  781,  58  Am. 
lowances,  30  I.  C.  C.  539;   See  also  St.  Rep.  Ill,  38  S.  W.  659. 
Davies  v.  Louisville  &  N.  R.  Co.,  18  Kentucky.     Illinois  Cent.  R.  Co. 
I    C.  C.  540.  V.  Matthews,  24  Ky.  L.  Rep.  1766, 

60.  Detroit    Coal    Exchange    v.  60  L.  R.  A.  846,  72  S.  W.  302. 
Michigan  C.  R.  Co.,  38  I.  C.  C.  79.  Maine.    Wood  v.  Maine  Cent.  R. 
See  also  New  England  Coal  &  Coke  Co.,   98   Me.   98,   99   Am.   St.   Rep. 
Co.  v.  Norfolk  &  W.  Ry.,  22  I.  C.  C.  339,  56  Atl.  457. 

398;   Wilson  Produce  Co.  v.  Penn-  Minnesota.      McKibbin  v.  Great 

sylvania  R.  R.,  14  I.  C.  C.  170.  Northern   Ry.   Co.,   78   Minn.,   232, 

61.  United   States.     Saunders  v.       80  N.  W.  1052. 

Southern  R.  Co.,  62  C.  C.  A.  523,  Mississippi.     Yazoo   &  M.  V.   R. 

128  Fed.   15.  f^O-.  v.  Georgia  Home  Ins.  Co.,  85 

Arkansas.      Kansas    City,    P.    &  Miss.  7,  67  L.  R.  A.  646,  107  Am. 

G.    R.   Co.   v.    State,    65   Ark.    363,  St.  Rep.  265,  37  So.  500. 

41   L.  R.  A.  333,  67  Am.  St.  Rep.  Nebraska.     Ringwalt  v.  Wabash 


§  132]       Transpoktation  Services  Under  Act.  291 

passengers  were  subject  to  conflicting  statutes  and  deci- 
sions of  various  courts. 

To  secure  uniformity  and  reasonableness  of  all  regu- 
lations governing  baggage  as  to  all  interstate  passengers, 
the  Interstate  Commerce  Act  was  amended  in  1910  so 
that  thereafter  it  became  the  duty  of  all  common  car- 
riers to  establish,  observe  and  enforce  just  and  reason- 
able regulations  and  practices  affecting  the  carrying  of 
personal,  sample  and  excess  baggage.**" 

Prior  to  the  1910  amendment;  the  Act  contained 
no  specific  provision  relating  to  the  interstate  trans- 
portation of  baggage.  Conformable  to  the  requirements 
of  the  1910  amendment,  the  carriers  appointed  a  com- 
mittee to  collate  their  baggage  rules  and  regulations, 
and  new  regulations  governing  the  transportation  of 
baggage  were  adopted  and  enforced. •*■' 

§  132.  Refrigeration,  Ventilation  and  Icing  of 
Property  in  Cars  Part  of  Transportation  Duties  of  Inter- 
state Carriers.  Under  the  Hepburn  Amendment  of  1906, 
refrigeration,  ventilation  and  icing  of  property  trans- 
ported in  interstate  and  foreign  commerce  became  a 
part  of  the  transportation  service  which  the  carriers 
under  federal  control  are  required  to  furnish  upon 
reasonable  request  therefor."*     Carriers,  therefore,  may 

R.  Co.  45  Neb.  760,  64  N.  W.  219.  599;  Nashville  C.  &  St.  L.  R.  Co.  v. 

New  Jersey.    Runyan  v.  Central  LlUie,    112    Tenn.,    331,    105    Am. 

R.  Co.  of  New  Jersey,  61  N.  J.  L.  St.  Rep.  947,  78  S.  W.  1055. 

537,  43  L.  R.  A.  284,   68  Am.   St.  Texas.    Missouri,  K.  &  T.  R.  Co. 

Rep.  711,  41  Atl.  367;  Pennsylvania  of  Texas  v.  Meek,  33  Tex.  Civ.  App. 

R.  Co.  V.  Knight,  58  N.  J.  287,  33  47,  75  s.  W.  317. 

Atl.  845.  62.  Boston  &  M.  R.  Co.  v.  Hook- 
New  York.      Knieriem    v.    New  er,    233   U.    S.   97,    58   L.    Ed.    868, 

York  Cent.  &  H.  River  R.  Co.,  109  34   g^p    ^t.    526,    L.   R.   A.    1915B 

N.  Y.  App.  Div.  709,  96  N.  Y.  Supp.  45^.    j^^   ^^  Advances   Regulations 

602;   Curtis  V.  Delaware  L.  &  W.  Restricting  the  Shape  of  Baggage, 

R.   Co.,  74  N.  Y.  116,   30  Am.   St 


33  I.  C.  C.  266;  In  re  Baggage  Reg- 
ulations, 26  I.  C.  C.  292. 


Rep.  271. 

South  Carolina.     Adger  v.  Blue 

Ridge  Rv.   Co..  71   S.  C.   213.   110  ^'^-    Jewelers  Protective  Union  v. 

Am.  St.  Rep.  568,  50  S.  E.  783.  Pennsylvania  R.  Co.,  36  I.  C.  C.  71. 

Tennessee.    Yazoo  &  M.  V.  R.  Co.  64.  Cudahy  Packing  Co.  v.  Grand 

V.  Baldwin,  113  Tenn.  205,  81  S.  W.  Trunk  Western  R.  Co.,  131  C.  C.  A. 


292 


Duties  to  Interstate  Shippees. 


[§  132 


use  their  own  refrigeration  cars  and  ice  them,  and  can- 
not be  compelled  to  accept  those  tendered  by  the  ship- 
per; for  whatever  transportation  service  or  facility  the 
law  requires  carriers  to  supply,  they  have  the  right  to 
furnish  them.®^ 

Even  under  the  common  law  a  railroad  company, 
holding  itself  out  as  a  carrier  of  perishable  goods,  was 
under  legal  obligation,  arising  out  of  the  nature  of  its 
employment,  to  provide  suitable  and  necessary  lines  and 
facilities  for  such  transportation.''®    "When  the  refrigera- 


401,  215  Fed.  93;  In  re  Precooling 
and  Preicing,  23  I.  C.  C.  267. 

65.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  United  States,  232  U.  S.  199,  58 
L.  Ed.  568,  34  Sup.  Ct.  291,  in 
which  Mr.  Justice  Lamar  said: 
"This  rule  is  attacked  by  the  ap- 
pellants, who  contend  that  icing 
is  a  part  of  refrigeration,  which 
the  Hepburn  Act  makes  a  part 
of  the  transportation  they  are 
bound  to  furnish  upon  reasonable 
request.  They  insist  that  in  order 
to  meet  the  duty,  thus  imposed  by 
statute,  they  have  been  compelled 
at  great  expense  to  erect  immense 
plants  where  trainloads  of  fruit 
can  be  cooled  and  where  an  enor- 
mous quantity  of  ice  is  manufac- 
tured for  refrigeration  purposes. 
They  argue  that,  being  bound  to 
furnish  all  necessary  icing  and  re- 
icing  and  having  at  great  cost  pre- 
pared to  furnish  the  supply,  It  is 
not  only  just,  but  a  right  given 
by  statute,  that  they  should  be 
allowed  to  provide  all  needed  icing 
or  refrigeration  at  a  rate  to  be 
approved  by  the  Commission. 
Whatever  transportation  service 
or  facility  the  law  requires  the 
carrier  to  supply  they  have  the 
right  to  furnish.  They  can  there- 
fore use  their  own  cars,  and  cannot 
be  compelled  to  accept  those  ten- 
dered by  th2  shipper  on  condition 


that  a  lower  freight  rate  be 
charged.  So,  too,  they  can  furnish 
all  the  ice  needed  in  refrigeration, 
for  this  is  not  only  a  duty  and  n. 
right,  under  the  Hepburn  Act,  but 
an  economic  necessity  due  to  the 
fact  that  the  carriers  cannot  be 
expected  to  prepare  to  meet  the 
demand,  and  then  let  the  use  of 
their  plants  depend  upon  hap- 
hazard calls,  under  which  refrig- 
eration can  be  demanded  by  all 
shippers  at  one  time  and  by  only 
a  few  at  another.  This  contention 
was  sustained  by  the  Commission, 
which  recognized  that  'the  shipper 
has  no  right  to  provide  refriger- 
ation himself  today  and  call  upon 
the  railroad  company  for  that 
service  tomorrow.  To  permit  such 
a  course  is  to  demoralize  the  ser- 
vice of  the  defendants  and  prevent 
them  from  discharging  their  duty 
with  economy  and  efficiency  .  .  . 
It  is  the  duty  of  the  carrier  to 
furnish  refrigeration  upon  reason- 
able demand,  and  in  so  far  as  the 
furnishing  of  that  refrigeration 
is  a  part  of  the  service  rendered 
by  the  carrier,  the  carrier  may 
insist  upon  its  right  to  furnish 
that  service  exclusively.'  20  I.  0. 
C.  116. 

66.  United  States.  Atlantic  Coast 
Line  R.  Co.  v.  Macon  Grocery  Co., 
92  C.  C.  A.  114,  166  Fed.  206. 


§  132J       Teanspoktation  Services  Under  Act.  293 

lion  service  is  wliolly  under  the  control  of  the  carrier 
and  it  determines  wlien  ice  sliall  be  supplied  and  in 
wliat  quantities  so  that  llie  shipper  neither  directs  the 
use  nor  knows  the  amount  used,  and  the  amount  depends 
upon  the  manner  in  which  the  ear  is  handled  by  the  car- 
rier itself,  the  charge  should  be  a  gross  sum  for  the 
entire  service,  and  a  tariff  requiring  the  shipper  to  pay 
for  the  amount  of  ice  consumed  in  reicing,  is  unduly 
discriminatory  between  different  shippers." 

When  ice  is  actually  needed  and  used  in  the  trans- 
portation of  perishable  goods,  the  question  has  frequent- 
ly arisen  even  since  the  passage  of  the  Hepburn  amend- 
ment, whether  the  icing  is  a  part  of  the  transportation 
or  is  a  part  of  the  ])reparation  for  transportation  which 
may  be  done  by  the  shipper  himself.  In  other  words, 
has  the  shipper  the  legal  right  under  some  circum- 
stances to  precool  and  preice  his  own  shipment?  This 
question  was  decided  by  the  Supreme  Court  in  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  United  States,"^  known  as  the 
Precooling  Case.  The  Commission  had  made  two  orders, 
one  reducing  the  rate  on  precooled  and  preiced  freight 
from  points  in  Southern  California  to  eastern  destina- 
tions, and  the  other  requiring  the  carriers  to  maintain 
tariffs  permitting  preicing  and  precooling  of  their  own 
shipments  by  shippers,  this  being  a  service  performed  by 
the  ship])ers  in  precooling  the  freight,  and  placing  in 
the  bunkers  of  the  cars  the  icing  necessary  for  the  preser- 
vation of  the  freight  during  transportation.  In  sustain- 
ing the  validity  of  the  orders  of  the  Interstate  Commerce 
Commission,  the  Supreme  Court  held   on  the  question 

Colorado.     Carr   v.    Schafer,    15  Virginia.    New  York,  P.  &  N.  R. 

Colo.  48,  24  Pac.  873.  Co.  v.  Cromwell,  98  Va.  227,  49  L. 

Iowa.    Beard  v.  Illinois  Cent.  Ry.  r.  a.  462.  81  Am.  St    Rep   72''    15 

Co..  79  Iowa  518,  7  L.  R.  A.  280,  s   E   444 
18  Ann.  St.  Rep.  381,  44  N.  W.  800. 

Michigan.    Johnson  v.  Toledo.  S.  ^^-    Crutchfield     &     Woolfolk    v. 

&   M.    R.   Co.,    133    Mich.    59fi.    103  Southern  P.  Co.,  24  I.  C.  C.  651. 

Am.  St.  Rep.  464,  95  N.  W.  724.  ^8.    Atchison,  T.  &  S.  F.  R.  Co. 

Pennsylvania.     Davenport  Co.  v.  v    United  States.  232  U.  S.  199,  58 

Pennsylvania  R.   Co..   173   Pa.   St.  L.-  Ed.  568,  34  Sup.  Ct.  291. 
398,  34  Atl.  59. 


294  Duties  to  Interstate  Shippers.  [§  132 

of  confiscation,  that  a  rate  fixed  by  the  Commission 
which  apparently  exclnded  any  compensation  for  hanl- 
ing  ice  for  refrigeration,  is  not  confiscatory  when  it 
appears  tliat  the  rate  for  the  freiglit  itself  practically 
exclndes  the  rate  for  the  ice.  On  the  preicing  feature, 
the  conrt  held  that  a  tariff  withdrawing  the  privilege 
of  preicing,  fixed  a  rule  and  practice  within  the  mean- 
ing of  Section  15  of  the  Act  empowering  the  Commis- 
sion to  determine  whether  any  new  practice  is  unreason- 
able; that  it  depends  upon  the  facts  and  circumstances 
of  each  case  whether  icing  is  a  part  of  the  preparation 
for  a  shipment  to  be  dofte  b}^  the  shipper  or  is  a  part 
of  the  transportation  to  be  furnished  by  the  carrier; 
that  neither  the  shipper  nor  carrier  can  insist  upon  a 
wasteful  or  expensive  service  for  which  the  consumer 
must  ultimately  pay;  and  that  under  the  circumstances 
of  the  case,  the  shippers  have  the  right  to  preice  their 
shipments."^ 

§  133.  Track  Storage  and  Demurrage  Charges 
in  Connection  with  Interstate  Shipments  Under  Control 
of  Commission.  A  shipment  is  not  completed  until  ar- 
rival at  destination  and  delivery  to  the  consignee  or 
an  attempt  to  deliver  to  the  consignee.  The  power 
of  Congress  under  the  commerce  clause  covers  every- 
thing relating  to  the  delivery  of  freight  transported 
between  the  states.^"  Pursuant  to  this  authority.  Con- 
gress legislated  concerning  the  subject  matter  of  de- 
murrage and  track  storage  charges  on  interstate  freight 
by  including  all  services  in  connection  with  the  delivery 
and  storage  of  property  transported  fr/)m  one  state  to 

69.  Where  refrigeration  service  Co  167  U.  S.  633,  42  L.  Ed.  306, 
is  rendered  and  charges  are  as-  17  Sup.  Ct.  986;  Bowman  v.  Chi- 
signed  therefor,  the  tariffs  should  cago  &  N.  W.  Ry.  Co.,  125  U.  S. 
provide  and  state  the  amount.  465,  31  Ed.  700,  8  Sup.  Ct.,  689, 
Sulzberger  v.  Minneapolis,  St.  P.  1062.  In  Rhodes  v.  State  of  Iowa, 
&  S.  S.  M.  R.  Co.,  40  I.  C.  C.  173.  the   Court   said:    "We   think   that 

70.  McNeill  v.  Southern  R.  Co.,  interpreting  the  statute  by  the  law 
202  U.  S.  543,  50  L.  Ed.  1142,  26  of  all  its  provisions  it  was  not  in- 
Sup.  Ct.  722;  Rhodes  v.  State,  170  tended  to  and  did  not  cause  the 
U.  S.  412,  42  L.  Ed.  1C88,  18  Sup.  power  of  the  State  to  attach  to  an 
Ct.  664;  Interstate  Commerce  Com-  interstate  commerce  shipment, 
mission  v.  Detroit,  G.  H.  &  M.  Ry.  whilst    the    merchandise    was    in 


§  134]       Tkanhpohta'iiox  Skhvices  Under  Act. 


295 


another  luidcr  tlic  (IcCuiilioii  of  1  raiis|)()ii;i1i()n  in  llie 
statute.  The  assessment  of  (leiiiunau-e  and  Iraek  stor- 
age charges  on  such  sliipments  is,  therefore,  witliin 
the  exclusive  jurisdiction  of  the  Interstate  Coinineice 
Commission."' 

§  134.  Wharves  and  Connecting  Tracks  of  Inter- 
state Carriers  Public  Facilities  Under  Federal  Control. 
The  provisions  of  the  Interstate  Commerce  Act  as 
amended  in  1906  are  broad  enough  to  include  all  facil- 
ities of  any  descrii)tion,  used  in  the  transportation,  or 
in  connection  with  the  transportation  of  property  in 
commerce  subject  to  the  statute." 

Under  the  common  law  wharves  and  tracks  leading 
thereto  of  common  carriers  were  private  facilities,  the 
use  of  which  the  carrier  might  refuse  to  all  persons,  or 
might  grant  to  some  and  deny  to  others;'-'  but  since 
the  enactment  of  the  Hepburn  amendment,  such  wharves 
are  public  facilities  subject  to  the  provisions  of  the 
Interstate  Commerce  Act.^*     The  regulations  and  prac- 


transit  under  such  shipment,  and 
until  its  arrival  at  the  point  of 
destination  and  delivery  there  to 
the  consignee." 

71.  Michie  v.  New.  York,  N.  H. 
&  H.  R.  Co.,  1.51  Fed.  694;  United 
States  V.  Standard  Oil  Co..  148  Fed. 
719;  Wholesale  Produce  Dealers 
Ass'n  of  Brooklyn.  New  York  v. 
Long  Island  R.  Co..  26  I.  C.  C.  413; 
In  re  Demurrage  Charges,  25  I.  C. 
C.  314;  Murphy  Bros.  v.  New  York 
Cent.  &  H.  River  R.  Co.,  21  I.  C.  C. 
176;  Turnbull  Co.  v.  Erie  R.  Co.. 
17  I.  C.  C.  12:?;  Wilson  Produce  Co. 
V  Pennsylvania  R.  Co.,  16  I.  C.  C. 
116;  New  York  Hay  Exch.  Ass'n 
V.  Pennsylvania  R.  Co.,  14  I.  C. 
C.  178;  Wilson  Produce  Co.  v. 
Pennsylvania  R.  Co..  14  I.  C.  C. 
170;  Kehoe  &  Co.  v.  Charleston  & 
W.  C.  Ry.  Co.,  11  I.  C.  C.  166. 

72.  United  States  v.  Union  Stock 
Yard  &  Transit  Co.  of  Chicago,  226 


U.  S.  286,  57  L.  Ed.  226,  33  Sup.  Ct. 
83. 

73.  Louisville  &  N.  R.  Co.  v. 
West  Coast  Naval  Stores  Co.,  198 
U.  S.  483,  49  L.  Ed.  1135,  25  Sup. 
Ct.  745. 

74.  Southern  Pac.  Terminal  Co. 
V.  Interstate  Commerce  Commis- 
sion, 219  U.  S.  498,  55  L.  Ed.  310, 
31  Sup.  Ct.  279.  In  that  case  Mr. 
Justice  McKenna,  for  the  Court, 
said:  "There  is  great  difference 
between  competing  carriers  claim- 
ing the  right  to  use  the  facilities 
of  one  another  and  the  patrons 
of  the  same  carrier  contending  for 
equality  of  treatment.  In  stating 
this  we  assume  that  the  wharves 
in  the  pending  case  are  the  Instru- 
ments of  a  common  carrier.  This 
is,  however,  denied,  and  it  is  as- 
serted that  the  Terminal  Company 
is  purely  a  wharfage  company,  and 
'has  no  power  under  its  charter  to 


296 


Duties  to  Interstate  Shippers. 


[§  134 


tices  aft'eeting  the  use  of  wharves  owned  by  rail  car- 


act  as  a  common  carrier.'  The 
contention  is  based  on  a  partial 
view  of  the  conditions.  The  Ter- 
minal Company  was  incorporated 
to  execute  the  purposes  expressed 
in  the  act  of  the  legislature  of  the 
State  of  Texas,  that  is,  to  construct 
terminal  facilities  for  the  Southern 
Pacific  Railroad  and  Steamship 
systems,  and  to  accommodate  the 
export  and  import  traffic  at  Gal- 
veston; and  necessarily,  as  instru- 
mentalities of  such  traffic,  wharves 
and  piers  are  as  essential  as  steam- 
ships and  railroad,  and  are,  in  fact, 
as  they  were  intended  to  be  by 
the  charter  of  their  authorization, 
parts  of  a  system.  The  only  track 
facilities  for  movement  of  cars  to 
or  from  the  ships,  from  or  to  the 
tracks  of  the  Southern  Pacific 
Railways,  are  on  the  Terminal 
Company's  lands,  and  are  owned 
by  it.  To  these  tracks  the  Galves- 
ton, Harrisburg  and  San  Antonio 
Railway  switches  cars  for  other 
railroads,  charging  $1.75  per  car, 
and  the  Terminal  Company  re- 
ceives a  trackage  charge  of  50 
cents  per  car.  It  is  true  that  the 
Terminal  Company  does  a  wharf- 
age business  and  publishes  a  sched- 
ule of  its  charges,  while  not  filed 
with  the  Interstate  Commerce 
Commission,  shows  a  charge  of  20 
cents  a  ton  on  cotton  seed  cake 
and  meal,  and  this  appears  as  a 
wharfage  charge  In  the  tariffs 
of  the  Galveston,  Harrisburg  and 
San  Antonio  Railway  Company 
and  other  railways  entering  the 
city  of  Galveston.  And,  besides, 
the  Terminal  Company  was  a  party 
to  numerous  circulars  issued  by 
the  Southern  Pacific  Railway  Com- 
pany, and  that  effective  May  23, 
1905,  was  filed  with  the  Interstate 


Commerce  Commission.  These 
circulars  gave  terminal  charges 
at  the  port  of  Galveston.  The 
charge  on  cotton  seed  meal  and 
cake  was  given  at  1  cent  per  100 
pounds.  Shipments  on  through 
bills  of  lading  include  in  the 
freight  rate  the  wharfage  charge. 
Another  and  important  fact  is 
the  control  of  the  properties  by 
the  Southern  Pacific  Company 
through  stock  ownership.  There 
is  a  separation  of  the  companies 
if  we  regard  only  their  charters; 
there  is  a  union  of  them  if  we 
regard  their  control  and  operation 
through  the  Southern  Pacific  Com- 
pany. This  control  and  operation 
are  the  important  facts  to  ship- 
pers. It  is  of  no  consequence  that 
by  mere  charter  declaration  the 
Terminal  Company  is  a  wharfage 
company  or  the  Southern  Paci.ic 
a  holding  company.  Verbal  dec- 
larations cannot  alter  the  facts. 
The  control  and  operation  of  the 
Southern  Pacific  Company  of  the 
railroads  and  the  Terminal  Com- 
pany have  united  them  into  a 
system  of  which  all  are  necessary 
parts,  the  Terminal  Company  as 
well  as  the  railroad  companies.  As 
said  by  the  Interstate  Commerce 
Commission,  'the  Terminal  Com- 
pany was  organized  to  furnish 
terminal  facilities  for  the  system 
at  the  port  of  Galveston,'  and  it 
is  further  said  that  'through  ship- 
ments on  the  railroad  lines  from 
and  to  points  in  different  States 
of  the  Union  pass  and  repass  over 
the  docks  of  the  Terminal  Com- 
pany. It  forms  a  link  in  this 
chain  of  transportation.  It  is  nec- 
essary to  complete  the  avenue 
through  which  move  shipments 
over  these  lines  owned  by  a  single 


§  1.j5J       Tj{ANsroiriATiux\  JSehvices  Undkh  Act. 


297 


riers  engaged  in  interstate  commerce  and  used  for  re- 
ceiving and  delivering  property  moved  by  rail  in  inter- 
state and  foreign  commerce  must  be  reasonable  and 
nondiscriminatory.^^ 

§  135.      Jurisdiction    of    Commission    Over    Port 
Switching  Service  Performed  on  Import  Traffic.     The 


corporation.'  And  this  unity  of 
the  railroad's  lines  and  the  termi- 
nal facilities  is  recognized  in  the 
lease  to  Young.  By  it  he  agrees 
to  route  all  of  his  shipments 
over  'the  lines  of  the  Terminal 
Company  and  its  connections,  ac- 
cording to  the  instructions  of  said 
Terminal  Company  from  time  to 
time.'  And  provision  is  made 
against  the  possibility  of  other 
lines  bidding  for  the  traffic  by 
lower  rates.  In  such  event  he 
must  give  notice  to  the  Terminal 
Company  and  give  it  'the  option  of 
meeting  such  proposed  rates,'  and 
if  the  company  'elects  to  do  so,' 
then  he  'shall  not  divert  such 
shipments,  but  shall  abide  by  the 
provisions'  of  his  agreement.  And 
surely  a  system  so  constituted 
and  used  as  an  instrument  of  in- 
terstate commerce  may  not  escape 
regulation  as  such  because  one  of 
its  constituents  Is  a  wharfage  com- 
pany and  its  dominating  power 
a  holding  company.  As  well  said  by 
the  Interstate  Commerce  Commis- 
sion, 'a  corporation  such  as  this 
Terminal  Company,  which  has 
'competing  lines,'  should  not  be 
permitted  to  defeat  the  jurisdic- 
tion of  this  Commission  by  show- 
ing that  it  is  not  in  fact  owned  by 
any  railroad  company.  .  .  .  The 
Terminal  Company  is  part  and 
parcel  of  the  system  engaged  in 
the  transportation  of  commerce, 
and  to  the  extent  that  such  com- 
merce is  interstate,  the  Commis- 
sion has  jurisdiction  to  supervise 
and    control    it    within    statutory 


limits.  To  hold  otherwise  would 
in  effect  permit  carriers  general- 
ly, through  the  organization  of 
separate  corporations,  to  exempt 
all  of  their  terminals  from  our 
regulating  authority.'  The  reason- 
ing of  the  Commission  is  justified 
by  the  statute.  It  includes  in  the 
term  'railroad'  'all  bridges  and 
ferries  used  or  operated  in  con- 
nection with  any  railroad,  and 
also  all  the  road  in  use  by  any 
corporation  operating  a  railroad, 
whether  owned  or  operated  under 
a  contract,  agreement,  or  lease, 
and  shall  also  include  all  switches, 
spurs,  tracks,  and  terminal  facil- 
ities of  every  kind  used  or  neces- 
sary in  the  transportation  of  the 
persons  or  property  designated 
herein,  and  also  all  freight  depots, 
j'^ards,  and  grounds  used  or  nec- 
essary in  the  transportation  or  de- 
livery of  any  of  said  property.' 
The  property  of  the  Terminal  Com- 
pany is  'necessary  in  the  trans- 
portation or  delivery'  of  the  in- 
terstate and  foreign  freight  trans- 
ported by  the  lines  of  the  Southern 
Pacific    System." 

75.  Railroad  Com'rs  of  Florida 
V.  Atlantic  C.  L.  R.  Co.,  28  I.  C. 
C.  356;  In  re  Wharfage  Facilities 
at  Pensacola,  Florida  27  I.  C.  C. 
252;  Humboldt  Steamship  Co.  v. 
White  Pass  &  Yukon  Route,  25  I. 
C.  C.  136;  Flour  City  Steamship 
Co.  V.  Lehigh  VaUey  R.  R..  24  I.  C 
C.  179;  Mobile  Chamber  of  Com- 
merce V.  Mobile  &  0.  R.  R.,  23  I. 
C.  C.  417. 


298  Duties  to  Interstate  Shippers.  [§  135 

Act  to  Regulate  Commerce  applies  to  the  transportation 
of  property  shipped  from  a  foreign  country  to  any 
place  in  the  United  States  and  carried  to  such  places 
from  port  of  entry.'"  A  switching  service,  therefore, 
by  a  rail  carrier  of  foreign  freight  in  a  car  from  a 
vessel  to  team  tracks  in  the  same  city,  is  subject  to  the 
Interstate  Commerce  Act.^'  In  the  case  cited,  it  ap- 
peared that  the  railroad  company  had  filed  with  the 
Commission  a  switching  tariff  providing  for  a  charge 
of  $2.00  per  car  for  switching  carload  shipments  within 
the  limits  of  the  city  of  New  Orleans.  Vessels  carrying 
bananas  from  Central  America  were  docked  at  New 
Orleans  and  a  part  of  the  bananas  was  loaded  directly 
from  the  vessels  into  cars  which  were  then  switched  to 
team  tracks  within  the  city  where  the  bananas  were  un- 
loaded. The  railroad  company  refused  to  collect  its 
published  tariff  charge  on  the  theory  that  the  movement 
of  a  car  from  the  dock  to  a  team  track  was  not  subject 
to  the  Interstate  Commerce  Act,  but  the  Commission 
held  that  the  service  was  a  movement  of  foreign  com- 
merce and  fell  within  the  jurisdiction  conferred  upon 
the  Commission  in  Section  1  of  the  Act. 

§  136.  Interstate  Transportation  by  Land  of  Ex- 
plosives and  Other  Dangerous  Articles  Under  Federal 
Control.  Under  an  act  of  Congress  approved  March  4, 
1909,  known  as  the  Transportation  of  Explosives  Act, 
the  Interstate  Commerce  Commission  is  directed  and  em- 
powered to  formulate  and  prescribe  rules  and  regulations 
governing  the  safe  transportation  of  explosives,  which 
rules,  the  statute  declares,  shall  be  binding  upon  all 
common  carriers  engaged  in  the  interstate  or  foreign 
transportation  of  explosives  by  land. 

The  Commission  is  further  empowered,  of  its  own 
motion,  or  upon  the  application  of  an  interested  party, 
to  make  changes  or  modifications  in  such  regulations, 
made  desirable  by  new  information  or  altered  conditions. 

76.    Section    1,   Act   to   Regulate  77.    United     States     v.     Illinois 

Commerce,  appendix  A,  infra.  Cent.  R.  Co.,  2.30  Fed.  940. 


§  137]       Transportation  Services  Under  Act.  299 

SiK^li  I'cgulatioiis  ai'c  r<M|uii'('d  to  he  in  accuid  with  the 
best  known  praeticahlo  means  for  securing  safety  in 
transit,  covering  tlio  })aeking,  marking,  loading,  hand- 
ling and  precautions  necessary  to  determine  whether 
the  material  is  in  proper  condition  to  transport.  It  is 
further  provided  in  this  statute  that  such  regulations 
as  w^ell  as  all  changes  and  modifications  thereof,  shall 
take  effect  ninety  days  after  their  formulation  and  pub- 
lication by  the  Commission,  and  shall  he  in  effect  until 
reversed,  set  aside  or  modified."* 

The  Interstate  Commerce  Commission  in  VJlO  in- 
stituted an  investigation  into  the  reasonableness  of  the 
rules  of  the  American  Railway  Association  governing 
the  transportation  of  ex[)losives  and  other  dangerous 
articles  on  the  lines  of  the  carriers  who  were  members 
of  that  association.  Thereafter  the  Commission  pre- 
scribed rules  and  regulations  in  conformity  with  the 
provisions  of  the  Transportation  of  Ex])losives  Act, 
which  became  effective  on  March  31,  1912. 

In  National  Petroleum  Association  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,'^^  the  complainant  alleged  that  certain 
requirements  of  these  rules  were  unreasonable  and  un- 
necessary; but  the  Commission  held  that  the  particular 
rule  attacked  was  in  the  nature  of  a  federal  police  reg- 
ulation designed  to  minimize  as  much  as  possible  the 
dangers  attending  the  transportation  of  inflammable 
li(iuids,  and  to  ]:>romote  the  safety  of  life  and  property 
by   recjuiring  efficient   equipment. 

§  137.  Peddling  Merchandise  from  Cars  not  Trans- 
portation Service  Which  Carriers  may  be  Compelled  to 
Furnish.  The  use  of  cars,  tracks  and  yards  of  a  carrier 
in  retailing  commodities,  generally  known  as  "peddling 
service"  is  not  a  ]iart  of  transportation  within  the  Act 
to  Regulate  Commerce  that  a  shipper  may  demand  of  a 
carrier. 

77a.     For    coi)y   of  act,   see    Ap-  78.    National     Petroleum    Ass'n 

l)endlx   P.  infra.  v.  Atchison  T.  &  S.  F.  Ry.  Co.,  38 

I    C.  C.  65. 


300  Duties  to  Inteestate  Shippees.  [§  137 

The  business  of  a  railroad  is  transportation,  and  to 
supply  the  public  with  conveniences  not  connected  there- 
with is  no  part  of  its  ordinary  duty,"  The  mere  tolera- 
tion by  a  carrier  through  a  period  of  years  of  the  use 
of  its  cars  for  the  purpose  of  vending  perishable  com- 
modities affords  no  basis  for  a  rule  by  the  Commission 
that  the  practice  has  grown  into  a  shipper's  right  and  a 
carrier's  duty  under  the  law.^'' 

§  138.  Terms  "Railroad"  and  "Transportation" 
Defined  by  Statute.  Section  1  of  the  Interstate  Com- 
merce Act  defines  the  term  "railroad"  as  used  in  the 
Act,  to  include  all  bridges  and  ferries  used  or  operated 
in  connection  with  any  railroad,  and  also  all  the  road  in 
use  by  any  corporation  operating  a  railroad  whether 
owned  or  operated  under  a  contract,  agreement  or 
lease,  and  shall  include  all  switches,  spurs,  tracks,  and 
terminal  facilities  of  every  kind  used  or  necessary  in 
the  transportation  of  the  person  or  property  designated 
in  the  statute,  and  also  all  freight  depots,  yards,  and 
grounds  used  or  necessary  in  the  transportation  or  deliv- 
ery of  any  of  the  said  property.  The  term  "transpor- 
tation" as  defined  in  the  statute  includes  cars  and 
other  vehicles  and  all  instrumentalities  and  facilities 
of  shipment  or  carriage,  irrespective  of  ownership  or 
of  any  contract,  express  or  implied,  for  the  use  thereof 
and  all  services  in  connection  with  the  receipt,  delivery, 
elevation,  and  transfer  in  transit,  ventilation,  refrigera- 
tion, or  icing,  storage  and  handling  of  property  trans- 
ported.*^ 

§  139.  Statute  not  Applicable  to  all  Interstate  Com- 
merce. The  Interstate  Commerce  Act  in  its  application 
to  interstate  commerce,  is  limited  to  common  carriers  by 
rail,  express  companies,   sleeping  car  companies,  tele- 

79.     Great   Northern   R.   Co.   v.  80.     The  Car  Peddling  Case,  45 

State    ex    rel.    State    Railroad    &  I.  C.  C.  494. 

Warehouse  Commission,  238  U.  S.  81.    Southern  R.  Co.  v.  Prescott, 

340,   59   L.   Ed.    1337,   35    Sup.   Ct.  240   U.    S.   632,   60   L.   Ed.   836,   36 

753;      Donovan     v.     Pennsylvania  Sup.    Ct.    469;     Cleveland,    C,    C. 

Co.,  199  U.  S.  279,  50  L.  Ed.  192,  &  St.  L.  R.  Co.  v.  Dettlebach,  239 

26   Sup.   Ct.   91.  U.  S.  588,  60  L.  Ed.  453,  36  Sup. 


<§  139]       Transportation  Services  Under  Act.  301 

graph,  cable  and  telephone  companies,  carriers  of  oil  or 
other  commodities,  except  water  and  gas,  by  pipe  line 
or  partly  by  pipe  line  and  partly  by  railroad  or  water, 
and  carriers  by  water  used  imder  a  common  arrange- 
ment with  carriers  by  rail. 

The  provisions  of  the  statute  do  not  apply  to  car- 
riers engaged  in  traffic  wholly  by  water."  Nor  has  the 
Commission  any  jurisdiction  over  stage  coach  com- 
panies engaged  in  interstate  commerce.*^  A  baggage 
company  conveying  passengers  and  baggage  by  bus  and 
transfer  wagons  between  railroad  stations  in  a  city  and 
stations  and  residences,  was  held  to  be  a  common  car- 
rier engaged  in  interstate  commerce,  but  not  subject  to 
the  provisions  of  the  Interstate  Commerce  Act  as  it 
was  not  a  common  carrier  within  any  of  the  classes 
mentioned  in  the  statute.®*  Transportation  by  team  and 
wagon  from  one  state  to  another  is  -not  subject  to  the 
statute.^^ 

Ct.  177;  Ellis  v.  Interstate  Com-  man  v.  Adams  Exp.  Co.,  14  I.  C. 
merce  Commission,  237  U.  S.  434,  C.  340;  Cosmopolitan  SLiipping 
59  L.  Ed.  1036,  35  Sup.  Ct.  645;  Co.  v.  Hamburg-American  Packet 
Southern  R.  Co.  v.  Reid,  222  U.  Co.,  13  I.  C.  C.  26G. 
S.  424,  56  L.  Ed.  257,  32  Sup.  Ct.  83.  Wylle  v.  Northern  P.  R.  Co., 
140;  Hoadley  Brake  Shoe  Co.  v.  11  I.  C.  R.  145. 
American  Brake  Shoe  &  Foundry  84.  Re  Exchange  of  Free  Trans- 
Co.,  141  C.  C.  A.  638,  227  Fed.  90.  portation,  12  I.  C.  C.  39. 

82.    In  re  Jurisdiction  over  Wa-  85.     Cary  v.  Eureka  Springs  R. 

ter  Carriers,  15  I.  C.  C.  205;    Ull-  Co.,  7  I.  C.  R.  286. 


CHAPTER  VIII 

Unjust    Discriminations   and    Unlawful    Peefeeences 
BY  Inteestate  Caeeiees — Geneeal  Pbinciples 

Sec.  140.  Statutory  Definitions  of  Unjust  Discriminations  and  Undue 
Preferences. 

Sec.  141.  Unlawful  Discriminations  and  Preferences  Between  Shippers 
Under  the  Common  Law. 

Sec.  142.  Origin  and  History  of  Sections  Two  and  Three  of  the  Inter- 
state Commerce  Act. 

Sec.  143.  Purpose  and  Object  of  Congress  in  the  Enactment  of  Sec- 
tions Two  and  Three. 

Sec.  144.     Relations  and  Distinction  Between  Sections  Two  and  Three. 

Sec.  145.  Distinction  between  Section  Two  and  Clause  in  Section  One 
Prohibiting  Unjust  and   Unreasonable  Charges. 

Sec.  146.  Statutory  Conditions  Rendered  Difference  in  Charges  Un- 
lawful Under  Section  Two. 

Sec.  147.  Circumstances  and  Conditions  Determining  Dissimilarity  of 
Service  Under  Section  2  Refer  Strictly  to  Matters  of 
Carriage. 

Sec.  148.  Unjust  Discrimination  and  Preference  Sections  of  Original 
Act  Apply  to  Subsequent  Amendments  Defining  Railroads 
and  Transportation. 

Sec.  149.  Distinction  Between  Ordinary  Definition  of  Rebate  and 
Meaning  of  That  Term  Under  Provisions  of  Section  Two. 

Sec.  150.  Discrimination  Under  Section  3  Must  Ordinarily  be  Preju- 
dicial to  One  Party  and  Source  of  Advantages  to  the  Other. 

Sec.  151.     Relation  of  Discrimination  Clause  to  the  Elkins  Act  of  1903. 

Sec.  152.  All  Methods  and  Means  Employed  Unlawful  if  Ultimate  Re- 
sults Thereof  Cause  Unjust  Discriminations. 

Sec.  153.  Effect  of  Statute  Upon  Contracts  with  Discriminatory  Pro- 
visions. 

Sec.  154.  Terms  "Unreasonable"  or  "Undue"  Imply  Comparison  of  all 
Facts  and  Circumstances  Applicable. 

Sec.  155.  Existence  of  Undue  Preference  or  Unjust  Discrimination  a 
Question  of  Fact. 

Sec.  156.     Strict   Uniformity   Not   Always   Required. 

Sec.  157.  Long  Existence  of  Undue  Discrimination  No  .Justification  for 
its  Continuance. 

Sec.  158.  Prohibition  Against  Unjust  Discrimination  Covers  Judg- 
ments by  Consent  and  Waiver  of  Valid  Defences. 

Sec.  159.  Proof  of  Injury  and  Measure  of  Damages  in  Actions  for  Un- 
lawful   Discrimination. 


(302) 


§    140  I  I  )|S('HIMINA  riONS    AM)     PkEFERENCKS.  .jOiJ 

§  140.  statutory  Definitions  of  Unjust  Discrimina- 
tions and  Undue  Preferences.  Sootion  2  of  tlio  Act  to 
Regulate  Commerce  provides  tliat  any  (common  (-dinov 
chnr^/niiJ!;,  demanding,  collecting  or  rocoiving,  directly 
oi-  indirectly,  ])y  any  sjx'cial  rate,  rebate,  drawback  or 
oilier  device,  tVoiii  ;in>-  person  a  greatei'  oi'  less  com- 
pensation for  any  service  rendered  or  to  be  rendered,  in 
the  transportation  of  passengers  or  property,  subject 
to  the  Act,  than  it  charges,  demands,  collects  or  receives 
from  any  other  ]ierson  for  doing  for  him  a  like  and  con- 
teTn]^oran(M>ns  service  in  the  transportation  of  a  like 
kind  of  traffic  under  substantially  similar  circumstances 
and  conditions,  shall  be  deemed  guilty  of  unjust  dis- 
criinination  which  is  declared  unlawful. 

Section  3  of  the  Act  prescribes  that  it  shall  be  un- 
lawful for  any  common  carrier  subject  to  the  ]H'ovisions 
of  the  Act  to  make  or  give  any  undue  or  unreasonable 
preference  or  advantage  to  any  particular  person,  com- 
pany, firm,  corporation  or  locality,  or  any  particular 
description  of  traffic,  in  any  respect  whatsoever,  or  to 
subject  any  ]iarticular  person,  company,  firm,  corporation 
or  locality,  or  any  particular  description  of  traffic,  to 
any  undue  or  unreasonable  prejudice  or  disadvantage  in 
any  respect  whatsoever,  and  further  prescribes  that  all 
common  carriers  shall,  according  to  their  respective 
powers,  atford  all  reasonable,  proper  and  equal  facil- 
ities for  the  interchange  of  traffic  between  their  respect- 
ive lines  and  for  the  receiving,  forwarding  and  deliver- 
ing of  passengers  and  ]iroperty  to  and  from  their  several 
lines  and  those  connecting  therewith,  and  shall  not  dis- 
criminate in  their  rates  and  charges  between  such  con- 
necting lines,  but  nothing  in  the  statute  shall  be  con- 
strued as  requiring  any  common  carrier  subject  to  the 
Act  to  give  the  use  of  its  ti'acks  or  terminal  facilities 
to  any  other  carrier  engaged  in  like  business. 

These  two  sections  formed  an  important  part  of  the 
Interstate  Commerce  Act  as  originally  enacted  in  1887, 
and  have  remaine<l  in  the  statute  since  that  time  with- 
out any  amendments  or  changes. 


J04 


Duties  to  Interstate  Shippers. 


[§  141 


§  141.  Unlawful  Discriminations  and  Preferences 
Between  Shippers  Under  the  Common  Law.  Before  the 
passage  of  the  Act  to  Regulate  Commerce,  railway  traffic 
in  this  country  was  regulated  by  the  principles  of  the 
common  law  applicable  to  common  carriers  except  when 
modified  by  state  statutes.  Their  charges  for  transpor- 
tation were  required  to  be  reasonable,  and  when  a  car- 
rier refused  to  receive  goods  except  upon  the  payment 
of  an  unreasonable  sum,  the  shipper  had  a  right  of 
action  in  damages;^  but  there  was  a  conflict  of  opinion 
among  the  courts  as  to  whether  carriers  were  bound  to 
make  the  same  charge  to  all  persons  for  the  same  serv- 
ice.^ 

Some  courts,  under  the  common  law,  held  that  the 
duty  to  carry  for  all  did  not  require  an  equality  of  com- 


1.  United  States.  Texas  &  P. 
R.  Co.  V.  Abilene  Cotton  Oil  Co., 
204  U.  S.  426,  51  L.  Ed.  553,  27 
Sup.  Ct.  350,  9  Ann.  Cas.  1075; 
Western  U.  Tel.  Co.  v.  Call  Pub. 
Co.,  181  U.  S.  92,  45  L.  Ed.  765, 
21  Sup.  Ct.  561;  Union  Pac.  Ry. 
Co.  V.  Goodridge,  149  U.  S.  680, 
37  L.  Ed.  896,  13  Sup.  Ct.  970; 
Interstate  Commerce  Commission 
V.  Baltimore  &  0.  R.  Co.,  145  U. 
S.  263,  36  L.  Ed.  699,  12  Sup.  Ct. 
844;  Munn  v.  Illinois,  94  U.  S. 
113,  24  L.  Ed.  77;  Tift  v.  South- 
ern Ry.  Co.,  123  Fed.  789;  Men- 
acho  V.  Ward,  27  Fed.  529. 

niinois.  Chicago  &  A.  R.  Co.  v. 
People  ex  rel  Koerner,  67  111.  11, 
16  Am.  St.  Rep.  599;  Chicago,  B. 
&  Q.  R.  Co.  V.  Parks,  18  111.  460, 
68  Am.  Dec.  562. 

Maine.  New  England  Exp.  Co. 
V.  Maine  Cent.  R.  Co.,  57  Me.  188, 
2   Am.   Rep.   31. 

New  York.  Killmer  v.  New  York 
Cent.  &  H.  River  R.  Co.,  100  N.  Y. 
395,  53  Am.  Rep.  194,  3  N.  E.  293. 

Ohio.  Scofield  v.  Lake  Shore  & 
M.  S.  Ry.  Co..  43  Ohio  St.  571,  54 
Am.  Rep.   846,  3   N.  E.  907. 


Pennsylvania.  Sanford  v.  Cata- 
wissa,  W.  &  E.  R.  Co.,  24  Pa.  St. 
378,  64  Am.  Rep.  667. 

South  Carolina.  Ex  parte  Ben- 
son &  Co.,  18  S.  C.  38,  44  Am.  Rep. 
564. 

West  Virginia.  Brown  v.  Adams 
Exp.  Co.,  15  W.  Va.  812. 

Wisconsin.  Smith  v.  Chicago  & 
N.  W.  Ry.  Co.,  49  Wis.  443,  5  N. 
W.  240. 

2.  Interstate  Commerce  Com- 
mission V.  Baltimore  &  0.  R.  Co., 
145  U.  S.  263,  36  L.  Ed.  699,  12 
Sup.  Ct  844;  Pennsylvania  R.  Co. 
V.  International  Coal  Min.  Co.,  23o 
U.  S.  184.  57  L.  Ed.  1446,  33  Sup. 
Ct.  893,  Ann.  Cas.  1915A  315.  in 
which  the  Court  said:  "Indeed  it 
is  exceedingly  doubtful  whether 
there  was  at  common  law  any 
right  of  action  for  any  sort  of  dam- 
ages like  this,  while  this  statuL^ 
does  give  a  clear,  definite  and  posi- 
tive right  to  recover  for  unjust  dis- 
crimination. It  thereby  either  first 
created  the  right  or  removed  the 
doubt  as  to  whether  such  suit 
could  be  brought." 


§  141]         Discriminations  and  Preferences. 


305 


pensation  or  cliarge,  that  is,  that  tho  oarriors  were  not 
required  to  transport  freight  for  all  persons  similarly 
situated  for  the  same  compensation;^  while  others  held 
that  all  ship])ers  had  o([\vd]  ri(?hts  and  that  carriers 
were  required  to  make  the  same  charge  to  all  porsons 
for   similar  services.* 

In  a  leading  case  decided  in  1900  and  before  tele- 
graph companies  became  subject  to  the  Interstate  Com- 
meirce  Act,  the  United  States  Supreme  Court  held  that 
the  principles  of  the  common  law  were  operative  upon 
all  interstate  commerce  transactions,  expect  in  so  far  as 
they  were  modified  by  congressional  enaclment,  and  that 
common  carriers  were  required  to  treat  all  patrons 
similarly  situated  on  equal  terms,  but  such  ef|uality  of 
right  did  not  prevent  differences  in  modes  and  kinds  of 
services  and  different  charges  based  thereon.    Applying 


3.  United  States.  United  States 
ex  rel.  Morris  v.  Delaware,  L.  & 
W.  R.  Co.,  40  Fed.  101;  Menacho 
V.  Ward,  27  Fed.  529. 

California.  Cowden  v.  Pacific 
Coast  S.  S.  Co.,  94  Cal.  470,  18  L. 
R.  A.  221.  28  Am.  St.  Rep.  142.  29 
Pac.   873. 

Florida.  .Tohnson  v.  Pensacola 
&  P.  R.  Co.,  16  Fla.  62.*?,  26  Am. 
Rep.   731. 

Massachusetts.  Spoffard  v.  Bos- 
ton &  M.  R.  Co.,  128  Mass.  326; 
Sargent  v.  Boston  &  L.  R.  Co.,  115 
mass.  416;  Fitchburg  R.  Co.  v. 
Case,  42  Gray   (Mass.)    ."^PS. 

New  York.  Killmer  v.  New 
York  Cent.  &  H.  River  R.  Co.,  100 
N.  Y.  395.  53  Am.  Rpp.  194,  3  N. 
E.  293. 

Pennsylvania.  Hoover  v.  Penn- 
sylvania R.  Co..  156  Pa.  220,  22  L. 
R.  A.  263,  36  Am.  St.  Rep.  43,  27 
Atl.  282. 

South  Carolina.  Ex  parte  Benson 
&  Co.,  18  S.  C.  38.  44  Am.  Rep.  564. 

Tennessee.  Ragan  v  Aiken  & 
Buffet,  9  T^a    (Tenn.)   609. 

In  Menacho  v.  Ward,  supra,  the 


Court,  construing  tlie  rights  of  a 
common  carrier  under  the  common 
law,  said;  "Unquestionably  a  com- 
mon carrier  is  always  entitled  to 
reasonable  compensation  for  his 
services.  Hence  it  follows  that  he 
is  not  entitled  to  treat  all  those 
who  patronize  him  with  absolute 
equality.  It  is  his  privilege  to 
charge  less  than  fair  compensation 
to  one  person,  or  to  a  class  of  per- 
sons, and  others  cannot  justly 
complain  so  long  as  he  carries  on 
reasonable  terms  for  them.  Re- 
specting preferences  in  rates  of 
compensation,  his  obligation  is  to 
charge  no  more  than  a  fair  return 
in  each  particular  transaction,  and 
except  as  thus  restricted,  he  Is 
free  to  discriminate  at  pleasure. 
This  is  the  equal  justice  to  all 
which  the  law  exacts  from  tho 
common  carrier  in  his  relations 
with  the  public." 

4.  Atchison  T.  &  S.  F.  R.  Co. 
v.  Denver,  N.  &  0.  R.  Co.,  110  U. 
S.  667,  28  L.  Ed.  291.  4  Sup.  Ct. 
185;  Kinsley  v.  Buffalo.  N.  Y.  & 
P.  R.  Co.,  37  Fed.  181;    Handy  v 


1    Control   Cnrrlors   30 


306  Duties  to  Interstate  Shippers.  [§  141 

these  principles,  a  judgment  ag'ainst  an  interstate  tele- 
graph company  for  discrimination  between  two  patrons 
similarly  situated  for  similar  services,  was  sustained/ 

§  142.  Origin  and  History  of  Sections  Two  and 
Three  of  the  Interstate  Commerce  Act.  Section  2  of  the 
Interstate  Commerce  Act  was  modeled  after  an  English 
statute  ]iassed  in  1845  and  known  as  Section  90  of  tlie 
Eailway  Clauses  Act  of  1845."  The  British  statute  was 
known  as  the  "Equality  Clause"  governing  railroads 
and  canals.  The  American  statute  is  far  broader  than 
the  English  law,  for  instead  of  the  words  ''under  sub- 
stantially similar  circumvStances  and  conditions"  found 
in  Section  2,  the  British  Act  contines  the  carriage  to 
that  "passing  only  over  the  same  portion  of  the  line  of 
railway  under  the  same  circumstances."  Decisions  by  the 
British  courts  prior  to  1887,  when  Section  2  was  adopted, 
have  frequently  been  cited  by  the  national  Supreme 
Court  in  construing  the  American  Act.^ 

The  English  statute  was  as  follows:  "And  whereas 
it  is  expedient  that  the  company  should  be  enabled  to 
vary  the  tolls  upon  the  railway  so  as  to  accommodate 
them  to  the  circumstances  of  the  traffic  but  that  such 

Cleveland  &  M/R.  Co.,  31  Fed.  089;  his   conduct   should   be   equal   and 

Burlington,  C.  R.  &  N.  Ry.  Co.  v.  just    to    all.     *     *     *     ^    common 

Northwestern    Fuel    Co.,    31    Fed.  carrier  owes  an  equal  duty  to  all, 

652;    Missouri  Pac.  Ry.  Co.  v.  Tex-  and  it  cannot  be  discharged  if  he 

as  &  Pac.  Ry.  Co.,  30  Fed.  2;  John  is  allowed  to  make  unequal  pref- 

Hays  &  Co.  v.  Pennsylvania  Co.,  12  erences,    and    thereby    prevent    or 

Fed.  309;    Christie  v.  Missouri  Pac.  impair  the  enjoyment  of  the  com- 

Ry.  Co.,  94  Mo.  453,  7  S.  W.  567;  nion  law." 
Messenger  v.  Pennsylvania  R.  Co  ,  5.     Western  U.  Tel.  Co.  v.  Call 

36  N.  .T.  L.  407,  13  Am.  Rep.  457,  Pub.   Co.,  181   U.  S.  92,  45  L.  Ed. 

37  N.  J.  L.  531,  18  Am.  Rep.  754.  765,  21  Sup.  Ct.  561. 

This  view  of  the  courts  is  well  6.    Trammel  v.  Clyde  Steamship 

expressed   in   Messenger   v.    Penn-  Co.,  5  I.  C.  C.  324,  4  I.  C.  R.  121. 

sylvania  R.   Co.,  37   N.  J.  L.   531,  7.     Texas  &  P.  R.  Co.  v.  Inter- 

18  Am.  Rep.  754,  as  follows:     "The  state   Commerce   Commission,    162 

business  of  the  common  carrier  is  U.  S.  197,  40  L.  Ed.  940,   16   Sup. 

for  the  public,  and  it  is  his  duty  Ct.  666;  Interstate  Commerce  Com- 

to   serve   the  public   indifferently.  mission  v.  Baltimore  &  0.  R.  Co., 

*     *     *     In  the  very  nature,  then,  145   U.    S.   263,   36   L.   Ed.    699,   12 

of  his  duty,  and  of  the  public  right.  Sup.  Ct.  844. 


§  143]         Discriminations  and  Preferences.  307 

power  of  varying-  should  iiol  he  used  for  the  purpose  of 
prejudicing  or  favoring  i)aiticular  parties  or  for  the 
purpose  of  collusively  or  unfairly  creating  a  monopoly, 
either  in  the  hands  of  the  company  or  of  particular 
parties;  it  shall  be  lawful,  therefore,  for  the  company, 
subject  to  the  provisions  and  limitations  herein  and  in 
the  special  act  contained  from  time  to  time  to  alter  or 
vary  the  tolls  ])y  the  special  act  authorized  to  ])e  taken, 
either  upon  the  whole  or  upon  any  particular  portions 
of  the  railway,  as  they  shall  think  fit;  ])rovided,  that 
all  such  tolls  be  at  all  times  charged  equally  to  all  per- 
s6ns,  and  after  the  same  rate,  whether  per  ton,  per 
mile,  or  otherwise,  in  respect  to  all  passengers,  and  of 
all  goods  or  carriages  of  the  same  description,  and 
conveyed  or  propelled  by  a  like  carriage  or  engine,  pass- 
ing only  over  the  same  portion  of  the  line  of  railway 
under  the  same  circumstances;  and  no  reduction  or  ad- 
vance in  any  such  tolls  shall  be  made  either  directly 
or  indirectly  in  favor  of  or  against  any  particular  com- 
pany or  person  traveling  upon  or  using  the  railway." 
Section  3  of  the  Interstate  Commerce  Act  is  a  copy 
of  the  "undue  preference  clause"  of  the  British  Rail- 
way and  Canal  Act  passed  in  1854  as 'amended  in  1873, 
with  the  exception  that  the  word  ''locality"  found  in 
the  American  statute  does  not  appear  in  the  British  law. 
The  English  Act  provides  that  "no  such  company  shall 
make  or  give  any  undue  or  unreasonable  preference  or 
advantage  to  or  in  favor  of  any  particular  person  or 
company,  or  any  particular  description  of  traffic  in  any 
respect  whatsoever,  nor  shall  any  such  company  subject 
any  particular  person  or  company,  or  any  ]iarticular 
description  of  traffic,  to  any  undue  or  unreasonable 
prejudice  or  disadvantage  in  any  respect  whatsoever."* 

§  143.    Purpose  and  Object  of  Congress  in  the  En- 
actment of  Sections  Two  and  Three.    The  congressional 

8.  Some  of  the  English  cases  sion  v.  Baltimore  &  O.  R.  Co.,  145 
construing  Section  3  are  reviewed  U.  S.  26.1,  36  L.  Ed.  699,  12  Sup. 
in    Interstate   Commerce   Commis-      Ct.  844. 


308  Duties  to  Interstate  Shippers.  [§  143 

investigation  preceding  the  passage  of  the  Interstate 
Commerce  Act,  disclosed  an  elaborate  system  among 
common  carriers  of  secret  special  rates,  rebates,  draw- 
backs, concessions  and  preferences.  Shipments  of  im- 
portance were  commonly  made  under  special  bargains 
entered  into  for  the  occasion.  Favored  shippers  were 
enriched,  and  free  competition  was  destroyed.  Common 
carriers  gave  favors  with  the  hope  of  gain  and  sought 
to  control  business  by  demands  and  concessions.  Dis- 
crimination in  rates  between  cities  flourished  so  that 
some  towns  withered  away  and  others  became  prosper- 
ous. The  carriers  encouraged  the  growth  of  large  trade 
centers  so  that  the  traffic  might  be  concentrated  in  large 
quantities  and  handled  more  cheaply  by  lowering  the 
rates  to  these  points  and  raising  them  to  other  cities 
not  so  fortunately  favored.  Free  transportation  was 
given  to  secure  business  and  to  obtain  the  favor  of  local- 
ities and  public  bodies. 

Confronted  with  these  evils,  the  purpose  of  Con- 
gress in  the  enactment  of  the  second  and  third  sections 
of  the  Act  was,  to  cut  up  by  the  roots  the  entire  system 
of  rebates  and  discriminations  in  favor  of  particular 
localities  or  favored  corporations;^  to  put  all  shippers 
on  an  absolute  equality;  to  prevent  unjust  inequalities, 
partiality,  favoritism  or  unfairness  as  between  persons, 
traffic  or  localities  similarly  circumstanced;^"  to  compel 
the  carrier  as  a  public  agent  to  give  equal  treatment  to 
all;"  to  prevent  undue  and  unreasonable  preferences  to 
persons,  corporations  or  localities;^-  to  restrain  the 
building  up  of  one  locality  at  the  expense  of  another 
by  rates  favoring  the  former  and  discriminating  against 
the  latter;"  to  prevent  unjust  discrimination  between 

9.  Union  Pac.  Ry.  Co.  v.  Good-      sion,  200  U.  S.  3C1,  50  L.  Ed.  515, 
ridge,  149  U.  S.  680,  37  L.  Ed.  896,       26  Sup.  Ct.  272. 

13  Sup.  Ct.  970.  12.     Interstate  Commerce  Com- 

10.  Interstate  Commerce  Com-      mission  v.  Chicago  Great  Western 
mission  v.  Baltimore  &  O.  R.  Co.,      Ry.  Co.,  141  Fed.  1003. 

43  Fed.  37.  13.     Hampton   Board    of   Trade 

11.  New  York,  N.  H.  &  H.  R.  Co.       v.  Nashville,  C.  &  St.  L.  Ry.,  8  I. 
V.    Interstate   Commerce   Commis-      C.  C.  503. 


§144]         Dtscbiminations  and  Preferences.  309 

sliipjiers;^*  to  prohibit  unjust  discriminations  in  the 
rendition  of  like  services  under  similar  circumstances;" 
to  compel  every  carrier  to  give  equal  rights  to  all  ship- 
pers over  its  own  road  and  to  i'orbid  it  by  any  devices 
from  enforcing  higher  charges  against  one  than  another;" 
to  restrain  the  carrier  from  giving  any  shipper  ])riv- 
ileges  or  charges  in  connection  with  the  transportation 
of  its  property  that  were  witlilield  horn  its  competitor/^ 
and  to  forbid  any  advantage  of  one  locality  over  another 
not  arising  out  of  differences  in  transportation  condi- 
tions." 

The  underlying  purpose  of  this  legislation  was  to 
insure  shipper  not  only  equal  rates  but  an  impartial 
enjoyment  of  the  facilities  and  services  of  interstate 
common  carriers.  By  section  2,  the  shipper  is  assured 
an  equality  of  rates  for  the  transportation  of  like  traffic 
under  substantially  similar  circuuistauces,  and  by  sec- 
tion 3  he  is  assured  an  equality  in  the  opportunity  to 
use  the  rates,  facilities  and  services  of  a  carrier.  One 
section  supplements  the  other.  An  equality  in  rates 
without  an  equal  opportunity  to  use  the  facilities  of  the 
carrier,  would  fall  short  of  the  object  sought  to  be  at- 
tained by  Congress." 

§  144.  Relation  and  Distinction  Between  Sections 
Two  and  Three.  Section  2  prohibits  unjust  discrimina- 
tion in  rates  between  shippers  of  like  traffic  and  ser- 
vices of  transportation  under  substantially  similar  con- 
ditions. It  was  aimed  primarily  at  the  wholesale  dis- 
crimination by  rebate  so  prevalent  at  the  time  of  the 
passage  of  the  Act.^°     Section  3  is  far  broader  in  its 

14.  Texas  &  P.  R.  Co.  v.  Inter-  J  7.  Federal  Sugar  Refining  Co. 
state  Commerce  Commission,  162  v.  Baltimore  &  O.  R.  Co.,  20  I.  C. 
U.  S.  197,  40  L.  Ed.  940,  16  Sup.       q    2OO. 

^^-   ^^^-  18.       Railroad     Commission     of 

15.  Interstate  Commerce  Com-  Louisiana  v.  St.  Louis  S.  W.  Ry. 
mission  v.  Baltimore  &  O.  R.  Co.,       ,       *>•'  t    P    r    '^1 

145   U.    S.   263,   36   L.    Ed.    699,   12  "  "" 

Sup    Ct    844  ^^'     ^^*^    *    River   Coal    Co.    v. 

16.  Wight  V.  United  States,  167  Baltimore  &  O.  R.  Co.,  14  I.  C.  C. 
U.  S.  512,  42  L.  Ed.  258,  17  Sup.  ^6. 

Ct    822.  20.    Re  Underbills,  1  I.  C.  R.  813. 


310  Duties  to  Interstate  Shippees.  [§  144 

scope  tliau  section  2.  It  prohibits  all  iinrcasonalDle  ])re- 
ferences  or  advantages  for  or  against  localities,  and  be- 
tween kinds  of  traffic  as  well  as  discriminations  be- 
tween shippers  not  only  as  to  rates  bnt  as  to  other  ser- 
vices and  advantages  as  well. 

Section  2  deals  principall}^  with  discriminations 
among  shippers  as  to  rates.  Section  3  covers  discrimina- 
tions and  preferences  among  shippers  as  to  all  services 
other  than  rates,  and  also  with  preferences  between 
localities  and  kinds  of  traffic.  Since  both  sections  re- 
quire equalty  of  service  as  to  shippers  and  localities 
under  similar  conditions,  they  may  be  conveniently 
treated  together  as  the  same  principles  largely  govern 
in  the  application  of  both  to  the  mnltifarions  facts  of 
interstate  transportation. 

§  145.  Distinction  between  Section  Two  and  Clause 
in  Section  One  Prohibiting  Unjust  and  Unreasonable 

Charges.  The  reasonableness  of  a  rate  is  not  necessarily 
involved  in  determining  unjust  discrimination  under 
section  2.  Section  1  requires  the  carrier  to  provide  and 
furnish  transportation  upon  reasonable  request  therefor 
and  to  establish  just  and  reasonable  rates  applicable 
thereto;  but  a  rate  may  be  reasonable  and  just  under 
requirements  of  section  1  and  yet  be  unlawful  under  the 
provisions  of  sections  2  and  3  as  to  a  sliip])er  because 
of  an  unjust  discrimination.  A  rate,  therefore,  must 
run  two  gantlets;  it  must  be  reasonable  under  the  re 
quirements  of  section  1,  and  it  must  be  non-discrimina- 
tory under  the  provisions  of  section  2.^^ 

When  it  is  sought  to  show  that  the  charges  for  any 
service  rendered  by  a  railroad  company  is  extortionate 
as  being  contrary  to  the  obligation  to  charge  equally, 
it  is  immaterial  whether  the  charge  is  reasonable  or  not; 
it  is  enough  to  show  that  the  company  carried  for  some 
other  person  or  class  of  persons  at  a  lower  charge  dur- 

21.     Kinavey  v.  Terminal  Rail-       road  Ass'n,  81  Fed.  803. 


§    146J  DlSCHI.MINAlloNS    AMt     1 'liKFERKNCKS.  311 

in^  tlio  same  jK'i-iod  iln'onulioiii   which   tho  paity  ooin- 
plaiiiiii^"  was  cliar^cfl  more  uiidoi-  like  ciiT'iiiiistniiccs.*" 

§  146.  Statutory  Conditions  Rendered  Difference  in 
Charges  Unlawful  Under  Section  Two.  A  cairicr  does 
not  x'iohiic  the  juoxisioiis  ot"  section  '2  in  dciiunidiii'j:  or 
receivin*^'  a  .i^reater  compensation  for  services  rendered, 
from  one  shipper  than  another  unless,  first,  the  services 
rendered  in  the  transjiortation  of  persons  or  property  are 
like  and  contemporaneous;  second,  the  services  are 
rendered  in  Ihc  transportation  of  a  like  kind  of  li-aflic, 
and,  third,  the  services  are  rendered  under  substantially 
similar  circumstances  and  conditions.-''  Tf,  therefore, 
the  services  rendered  to  ship]iers  are  not  like  and  con- 
temporaneous, or  if  the  traflRc  carried  for  each  of  them 
is  not  of  a  like  kind,  or  if  the  transportation  is  made 
under  circumstances  and  conditions  substantially  dis- 
similar, the  demand  or  collection  of  a  gTeater  compensa- 
tion from  one  than  the  other,  does  not  constitute  an 
unjust   discrimination. 

In  order  for  the  services  to  be  "like"  they  must  be 
rendered  at  least  over  the  same  line.^*  Tlie  expression 
"like  kind  of  traffic"  does  not  mean  that  all  classes  of 
livestock,  for  example,  must  be  transported  at  the  same 
rate,  and,  therefore,  a  higher  charge  for  the  transporta- 
tion of  sheep  than  for  the  carriage  of  cattle  under  simi- 

22.  Statement  of  Mr.  .Justice  Commission  v.  Baltimore  &  O  R. 
Blackburn  in  Great  Western  R.  Co.,  145  U.  S.  2C3,  36  L.  Ed.  699,  12 
Co.  V.  Sutton,  L.  R.  4  H.  L.  226.  Sup.  Ct.  844;  Union  Pac.  Ry.  Co. 
approvingly  cited  in  Interstate  v.  United  States,  117  U.  S.  355,  2.) 
Commerce  Commission  v.  Balti-  L.  Ed.  920,  6  Sup.  Ct.  772;  United 
more  &  O.  R.  Co.,  145  U.  S.  2(i3,  36  States  v.  Hanley,  71  Fed.  672; 
L.  Ed.  699,  12  Sup.  Ct.  844.  United  States  ex  rel.  Morris  v.  Del- 

23.  Penn  Refining  Co.,  Ltd.  /  aware,  L.  &  W.  R.  Co.,  40  Fed.  101; 
Western  New  York  &  P.  R.  Co.,  Kentucky  &  I.  Bridge  Co.  v.  Louis- 
208  U.  S.  208,  52  L.  Ed.  456,  2S  ville  &  N.  R.  Co..  37  Fed.  567,  2  L. 
Sup.  Ct.  268;    Texas  &  P.  R.  Co.  v.  R.  A.  289. 

Interstate  Commerce  Commission,  24.     Cattle   Raisers'  Association 

162  t.  S.  197,  40  L.  Ed.  940,  16  Sup.       of  Texas   v.   Fort   Worth  &    D.   C. 
Ct.     666;       Interstate     Commerce       Ry.  Co..  7  I.  C.  C.  51.".. 


312  Duties  to  Interstate  Shippers.  [§  146 

lar  circumstances  does  not  constitute  an  unjust  discrimi- 
nation.-^ 

§  147.  Circumstances  and  Conditions  Determining 
Dissimilarity  of  Service  Under  Section  2  Refer  Strictly 
to  Matters  of  Carriage.  In  determining  whether  dis- 
crimination exists  in  violation  of  section  2,  the  phrase 
"under  substantially  similar  circumstances  and  condi- 
tions" does  not  include  extraneous  conditions  or  cir- 
cumstances not  affecting  the  haulage  or  carriage.  Con- 
siderations beyond  the  actual  carriage  itself  or  the 
transportation  service  of  the  carrier,  cannot  be  per- 
mitted to  create  dissimilar  conditions.^" 

The  phrase  in  question  does  not  allow  carriers  to 
make  a  difference  in  rates  because  of  a  dissimilarity  in 
circumstances  arising  either  before  the  service  of  the 
carrier  began  or  after  it  was  terminated."  If  the  car- 
rier were  allowed  to  take  into  consideration  matters  not 
relating  to  the  actual  carriage  itself,  to  create  dissimilar 
circumstances,  the  interests  or  the  personal  relation  of 
the  shippers  to  the  carrier  both  before  and  after  the 
transportation,  would  create  justifiable  conditions  under 
the  statute  and  thus  open  the  way  for  preferences 
among  them.^* 

§  148.  Unjust  Discrimination  and  Preference  Sec- 
tions of  Original  Act  Apply  to  Subsequent  Amendments 
Defining  Railroads  and  Transportation.  AVhile  sections 
2  and  3  of  the  Act  defining  and  prohibiting  unjust  dis- 
crimination and  undue  preference  were  a  part  of  the 
original  Act  and  have  remained  in  the  statute  without 
amendment,  these  provisions  apply  with  equal  force  to 

25.  Wynn  v.  Wabash  R.  Co.,  Ill  45;  In  re  Restricted  Rates,  20  I. 
Mo.  App.  642,  86  S.  W.  562.  C.  C.   426. 

26.  Interstate  Commerce  Com-  27.  Interstate  Commerce  Com- 
mission V.  Baltimore  &  O.  R.  Co.,  mission  v.  Delaware,  L.  &  W.  R. 
225  U.  S.  326,  56  L.  Ed.  1107,  32  Co.,  220  U.  S.  235,  55  L.  Ed.  448,  31 
Sup.  Ct.  742,  Ann.  Cas.  1914A  504;  Sup.  Ct.  392. 

Interstate   Commerce   Commission  28.     Pennsylvania  R.  Co.  v.  In- 

V.  Alabama  Midland  R.  Co.,  168  U.       ternational  Coal  Min.  Co.,  97  C.  C. 
S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.      A.  383,  173  Fed.  1. 


§  149]         Discriminations  and  Preferences.  313 

new  subject  matters  brought  within  tlie  jurisdiction  of 
the  Interstate  Commerce  Commission  by  amendments 
and  must  be  construed  in  connection  witli  these  amend- 
ments and  subsecjuent  provisions. 

For  example,  the  original  definition  of  transporta- 
tion in  the  Act  was  amended  in  1906  so  as  to  include  all 
service  in  connection  with  the  receipt,  delivery,  eleva- 
tion, transfer  in  transit,  ventilation,  refrigeration,  stor- 
age and  handling  of  property  transported,  and  the  defi- 
nition of  the  term  railroad  in  the  original  Act  was 
amended  at  the  same  time  so  as  to  include  all  switches, 
spurs,  tracks  and  terminal  facilities  of  every  kind  used 
or  necessary  in  the  transportation  of  the  i)ersons  or 
property  designated  in  the  Act,  and  also  all  freight 
depots,  yards  and  grounds  used  or  necessary  in  the 
transportation  or  delivery  of  any  of  said  property. 

It  therefore  follows  that  the  provisions  of  sections 
2  and  3  must  be  read  in  connection  with  subsequent 
amendments  which  show^  the  transportation  as  used  in 
the  Act  covers  the  entire  carriage  and  service  in  con- 
nection with  the  receipt  and  delivery  of  property  trans- 
ported. The  prohibition  against  undue  discriminations 
and  undue  preferences  apply  to  terminal  facilities  of 
every  kind  and  character,  including  the  delivery  and 
interchange  of  cars  at  such  terminals.^^ 

§  149.  Distinction  Between  Ordinary  Definition  of 
Rebate  and  Meaning  of  That  Term  Under  Provisions  of 
Section  Two.  While  the  word  ''rebate"  ordinarily  in- 
cludes any  discount  or  deduction  from  a  stipulated  pay- 
ment, charge  or  rate  not  taken  out  in  advance  of  pay- 
ment but  handed  back  to  the  payer  after  he  has  paid 
the  stipulated  sum,  the  meaning  of  that  term  as  used  in 
the  equality  clause  of  section  two  is  plainly  limited 
to  such  sums  as  are  refunded  to  one  shipper  for  like 
services  under  similar  conditions  without  a  similar  re- 


29.     Pennsylvania  Co.  v.  United      States,   236   U.   S.   351,   59   L.   Ed. 

616,  35  Sup.  Ct.  370. 


314  Duties  to  Interstate  Sitippers.  [§  149 

fund  to  another.  In  other  words,  the  term  as  used  in 
tliis  statute  refers  only  to  such  discount,  deduction  or 
drawback  as  is  the  basis  of  a  discrimination  in  favor 
of  a  particuUir  person  and  against  other  persons  in  like 
situations,  and  destroj^s  that  equality  of  treatment  in 
rates  or  charges  to  which  the  public  is  entitled.  A  re- 
bate is  not  illegal  under  section  2  unless  it  produces 
the  discriminatory  result  defined  in  the  statute.  For 
example,  it  has  been  held  that  a  deduction  of  two  cents 
per  hundred  pounds  for  transfer  on  shipments  of  sugar 
in  carload  lots,  from  the  through  rate  when  destined 
to  certain  termini,  applicable  to  all  shippers  without  dis- 
crimination, did  not  constitute  a  rebate  within  the  terms 
of  the  statute.^" 

§  150.  Discrimination  Under  Section  3  Must  Ordi- 
narily be  Prejudicial  to  One  Party  and  Source  of  Ad- 
vantage to  the  Other.  Under  section  3  of  thp  Act,  tbo 
discrimination,  to  be  undue  and  unlawful,  must  ordi- 
narily be  such  that  the  prejudice  resulting  against  one 
party  is  a  source  of  advantage  to  the  other  alleged  to 
be  favored.  For  example,  an  unlawful  discrimination 
is  not  shown  by  proof  that  carriers  refuse  to  absorb 
switching  charges  on  grain,  while  absorbing  such  charges 
in  the  cases  of  other  commodities  which  have  no  com- 
petitive relation  with  grain.''^  And  so  proof  that  car- 
riers at  Chicago  did  not  furnish  assistance  in  the  un- 
loading of  fruit  and  vegetables  in  carload  lots  while 
furnishing  the  same  service  at  Milwaukee  or  i:u'e  versa, 
does  not  create  a  discrimination  that  is  undue  or  un- 
reasonable for  the  same  reason. ^^ 

§  151.  Relation  of  Discrimination  Clause  to  the  El- 
kins  Act  of  1903.  Tlie  ])rovisions  of  section  "J  prohibiting- 
unjust    discriminations    were    materially     strengthened 

30.  American     Sugar     Refining       New  York,  N.  H.  &  H.  R.  Co.,  11 
Co.  V.   Delaware,  L.  &  W.  R.  Co.,       I.  C.  C.  422. 

125  C.  C.  A.  251,  207  Fed.  733.  32.     Board  of  Trade  of  St.  Paul 

31.  Board  of  Trade  of  Chicago,       v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  17 
111.  V.  Atchison,  T.  &  S.  F.  R.  Cc,       I.  C.  C.  596. 

29  I.  C.  C.  438;    See  also  Miner  v. 


§     ITjl'l  1  )IS(I;IMINATI()N.S    AM)     I 'hKFKRENCES.  '-''^'i 

by  tlio  pasi^a^o  of  llic  KIkiiis  Ad  of  ]'.)()'.'>.  liidcr  i^cc- 
tioii  2  llio  dciermiiintivo  factor  as  to  violation  is  whetlier 
tlic  cairicr  charged  one  siiipper  more  than  another.  The 
standard  of  f'oni])arison  was  the  treatment  of  other 
shii)pers.  Tlic  ])arty  ui)()n  wliom  the  burden  of  ])roof 
rested  was  i'(M|iiii'c(l  to  sliow  that  tlie  favored  sliipix-r 
paid  less  than  the  other  shipper  for  similar  services; 
hut  under  the  Elkins  Act  the  standard  of  comparison  is 
the  ])ublished  rate,  and  if  a  carrier  is  shown  to  have 
permitted  any  shipper  to  transport  his  property  at  less 
than  the  published  rate,  both  are  guilty  of  a  misde- 
meanor. Any  dejiarture  from  the  published  rate  is  an 
offense.  The  tiled  and  ])ublished  rate  is  conclusively 
deemed  to  be  the  legal  rate. 

§  152.  All  Methods  and  Means  Employed  Unlaw- 
ful if  Ultimate  Results  Thereof  Cause  Unjust  Discrimi- 
nations. All  means  or  methods  however  skillfully  plan- 
ned by  which  an  unlawful  result  is  effected,  are  devices 
condemned  by  the  statute.  In  ascertaining  whether  the 
carrier  unjustly  discriminates  or  is  guilty  of  undue 
preferences,  the  law  deals  with  the  results  produced, 
and  it  is  not  material  what  means  may  be  emploj^ed  for 
that  purpose.  If  they  in  fact  culminate  in  what  the 
law  forbids,  it  is  of  no  importance  that  the  means  be 
direct  or  indirect,  open  or  covert. 

If  the  result  is  unlawful,  the  inhibition  of  the  stat- 
ute falls  alike  upon  the  result  itself  and  the  means  by 
which  it  is  reached,  and  the  parties  engaged  in  the  trans- 
portation must  be  presumed  to  have  intended  by  their 
acts  the  breach  of  the  law  that  ensues  as  a  necessary 
consequence.  Thus,  where  a  firm  of  cattle  dealers  organ- 
ized a  separate  corporation  for  the  purpose  of  supplying 
a  carrier  with  imi)roved  stock  cars  for  the  transporta- 
tion of  its  stock  from  riiicago  to  New  York  for  which 
the  carrier  paid  a  very  high  rental  and  extraordinary 
mileage  amounting,  in  fact,  to  a  rebate  on  their  rates, 

33.     See  Appendix   B,  i»/ro. 


316  Duties  to  Interstate  Shippees.  [§  152 

the  Commission  held  the  arrangement  to  be  an  "unlaw- 
ful i^referonce  condemned  by  the  statute."''* 

§153.  Effect  of  Statute  Upon  Contracts  with  Dis- 
criminatory Provisions.  All  contracts  existing  at  the 
time  of  the  passage  of  the  Interstate  Commerce  Act, 
the  provisions  of  which  required  a  carrier  to  discrimi- 
nate either  for  or  against  any  shipper,  became  void 
under  the  statute.^^  Likewise  all  such  contracts  entered 
into  since  the  passage  of  the  Act  are  not  enforceable 
and  render  the  carrier,  when  a  party  to  the  same,  liable 
to  punishment  for  undue  discrimination.^*' 

§154.  Terms  "Unreasonable"  or  "Undue"  Imply 
Comparison  of  all  Facts  and  Circumstances  Applicable. 

In  determining  whether  any  rate  is  unjust  or  unreason- 
able or  whether  any  person,  locality  or  kind  of  traffic  is 
subjected  to  any  undue  or  unreasonable  prejudice  or 
disadvantage  the  tribunals  appointed  to  enforce  the 
provisions  of  the  statute,  whether  the  Commission  or 
the  courts,  should  take  into  consideration  all  the  facts 
and  circumstances  which  bear  upon  the  relation  of  the 
rates  between  the  shippers  and  to  different  communities. 

34.  Shamberg  v.  Delaware  L.  &  Washington.  Cowley  v.  North- 
W.  R.  Co.,  3  I.  C.  R.  502,  4  I.  C.  ern  Pac.  R.  Co.,  68  Wash.  558,  41 
C.  630.  To  the  same  effect;  Mus-  T..  R.  A.  (N.  S.)  559,  123  Pac.  998. 
kogee    Commercial    Club    v.    Mis-  West  Virginia.     Dorr  v.   Chesa- 

souri,  K.  &  T.  Ry.  Co.,  12  I.  C.  C.      P^ake  &  0.  Ry.  Co.,  W.  Va. 

o-ip  ,  88  S.  E.  666. 

35.  United  States.  Louisville  &  ^6.  Alabama.  Louisville  &  N.  R. 
N.  R.  Co.  V.  Mottley,  219  U.  S.  467,  ^«-  v-  Jo"^^'  ^  Ala.  App.  617.  6  N. 
55  L.  Ed.  297,  31  Sup.  Ct.  265,  34      C.  C.  A.  43,  60  So.  945. 

L.  R    A.    (N.  S.)    671;     Louisville  Georgia.    Savannah,  F.  &  W.  Ry. 

&  N.  R.  Co.  V.  Mottley,  211  U.  S.  ^o.  v.  Bundick,  94  Ga.  775,  21   S. 

149,  53  L.  Ed.  126,  29  Sup.  Ct.  4?.  -^-  ^^•^■ 

Iowa.    Gatton  v.  Chicago,  R.  I.  &  Kansas.    Chicago,  R.  I.  &  P.  Ry- 

P.  R.  Co.,  35  Iowa  112,  29  L.  R.  A.  Co.  v.  Hubbell,  54  Kan.  232,  38  Pac. 


556,  63  N.  W.  589. 


266. 


Kentucky.      Louisville    &    N.    R.  Kentucky.     Illinois  Cent.  R.  Co. 

Co.  V.  Crowe,  156  Ky.  27,  49  L.  R.  v   Fleming,  148  Ky.  473,  146  S.  W. 

A.   (N.  S.)   848.  160  N.  W.  759.  1110. 

Nebraska.    Fitzgerald  v.  Fitzger-  Missouri.     Southern  Wire  Co.  v. 
aid  &  Mallory  Const.  Co.,  41  Neb. 
374,  59  N.  W.  838. 


§  155]         Discriminations  and  Preferences.  317 

When  Congress  enacted  that  one  locality  should  not 
have  undue  preferences  in  rates  or  facilities  over  an- 
other locality,  or  be  subjected  to  any  unreasonable  preju- 
dice or  disadvantaf(e,  it  opened  the  door  for,  and  made 
material,  any  evidence  which  tends  to  throw  lic^ht  upon 
the  question  of  undue  preference  or  prejudice.  The 
terms  of  the  statute  imply  comparison  of  relative  loca- 
tions, of  natural  and  acquired  advantages,  of  the  reason- 
ableness of  charg:es  per  se  and  their  relation  to  other 
rates  on  the  various  lines  which  serve  the  competing 
localities." 

Both  the  courts  and  the  Commission  in  passing  upon 
questions  arising  under  the  Act  are  em]^owerod  to  fully 
ponsider  all  the  circumstances  and  conditions  that  reason- 
ably apply  to  the  situation,  and,  in  addition,  they  should 
consider  the  legitimate  interests  not  only  of  the  carriers 
but  also  of  shippers.  In  considering  whether  any  locali- 
ty is  subjected  to  an  undue  preference,  the  welfare  of 
the  communities  occupying  the  localities  where  the 
goods  are  delivered  must  be  considered  as  well  as  that 
of  the  communities  which  are  in  the  locality  of  the  place 
of  shipment. ^^ 

§  155.  Existence  of  Undue  Preference  or  Unjust 
Discrimination  a  Question  of  Fact.  The  second  sec- 
tion does  not  define  or  describe  what  constitutes  a  sim- 

St.  Louis  Bridge  &  Tunnel  R.  Co.,  Great  Northern  Ry.  Co.,  4  I.  C.  R. 

38  Mo.  Ap>  191;    Christie  v.  Mis-  230,  5  I.  C.  C.  571;    Board  of  Trade 

souri  Pac.  Ry.  Co.,  94  Mo.  453,  7  of  Eau  Claire  v.  Chicago,  M.  &  St. 

S.  W.  567.  P.  R.  Co.,  4  I.  C.  R.  65,  5  I.  C.  C. 

Montana.    Bullard    v.    Northern  264;    Board  of  Trade  of  Lincoln  v. 

Pac.  R.  Co.,  10  Mont.  1G8,  11  L.  R.  Missouri  P.  R.  Co.,  2  I.  C.  R.  98, 

A.  246,  25  Pac.  120.  2  I.  C.  C.  155;     Raymond  v.  Chi- 

South  Dakota.    Church  v.  Minne-  cago,  M.  &  St.  P.  R.  Co.,  1  I.  C.  R. 

apolis  &  St.  L.  Ry.  Co.,  14   S.  --'.  627;  1  I.  C.  C.  230;  Board  of  Trade 

443,  85  N.  W.  1001.  of  Farmington  v.  Chicago,  M.  &  ot. 

Vermont.       Fitzgerald  v.  Grand  P.  R.  Co.,  1   I.  C.  R.  608,  1  I.  C. 

Trunk  R.  Co.,  63  Vt.  169,  13  L.  R.  C.  215. 
A.  70,  22  Atl.  76.  38.     Texas  &  P.  R.  Co.  v.  Inter- 

37.     Daniels  v.  Chicago,  R.  I.  &  state   Commerce   Commission.   162 

P.  R.  Co.,  6  I.  C.  C.  458;    Chamber  U.  S.  197,  40  L.  Ed.  940,  16   Sup. 

of    Commerce    of    Minneapolis    v.  Ct.  666. 


318 


Ditties  to  Interstate  Shippers. 


[§  155 


ilarity  or  dissimilarity  of  circumstances  and  conditions. 
Neither  does  the  third  section  define  when  a  preference 
shall  be  undue  or  unreasonable.  The  question,  therefore, 
under  these  two  sections  whether  a  shipper,  community 
or  traffic  has  been  subjected  to  an  undue  preference  or 
an  unjust  discrimination  is  an  issue  of  fact  in  each 
particular  case  and  not  a  question  of  law.^^ 


§  156.  Strict  Uniformity  Not  Always  Required. 
The  statute  requires  that  discriminations  shall  not  be 
unjust,  and  that  preferences  and  advantages  as  to  any 
particular  firm  or  locality  must  not  be  undue.  This 
necessarily  implies  that  strict  uniformity  is  and  must 
not  always  be  enforced,  but  all  the  surrounding  facts 
and  circumstances  affecting  the  carrier  and  the  shipper 
should  be  considered.^"    Thus,  the  Commission  held  that 


39.  Pennsylvania  Co.  v.  United 
States,  236  U.  S.  351,  59  L.  Ed.  616, 
35  Sup.  Ct.  370;  New  York,  N.  H. 
&  H.  R.  Co.  V.  Interstate  Commerce 
Commission,  200  U.  S.  361,  50  L. 
Ed.  515,  27  Sup.  Ct.  272;  Louisville 
&  N.  R.  Co.  V.  Behlmer,  175  U.  S. 
648,  44  L.  Ed.  309,  20  Sup.  Ct.  209; 
Interstate  Commerce  Commission 
V.  Alabama  Midland  R.  Co.,  168 
U.  S.  144,  42  L.  Ed.  414,  18  Sup. 
Ct.  45;  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  V.  Interstate  Commerce 
Commission,  162  U.  S.  184,  40  L. 
Ed.  935,  16  Sup.  Ct.  700;  Texas 
&  P.  R.  Co.  V.  Interstate  Commerce 
Commission,  162  U.  S.  197,  40  L. 
Ed.  940,  16  Sup.  Ct.  666. 

40.  Texas  &  P.  R.  Co.  v.  Inter- 
state Commerce  Commission,  162 
TJ.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct. 
666,  in  which  the  court  said:  "The 
third  section  forbids  any  undue 
or  unreasonable  preference  or  ad- 
vantage in  favor  of  any  person, 
firm,  corporation  or  locality;  and 
as  there  is  nothing  in  the  act 
which  defines  what  shall  be  held 
to  be  due  or  undue,  reasonable   ir 


unreasonable,  such  questions  are 
questions  not  of  law,  but  of  fact. 
The  mere  circumstance  that  there 
is,  in  a  given  case,  a  preference  or 
an  advantage  does  not  of  itself 
show  that  such  preference  or  ad- 
vantage is  undue  or  unreasonable 
within  the  meaning  of  the  act. 
Hence  it  I'ollows  that  before  the 
Commission  can  adjudge  a  com- 
mon carrier  to  have  acted  unlaw- 
fully, it  must  ascertain  the  facts; 
and  here  again  we  think  it  evi- 
dent that  those  facts  and  matters 
which  carriers,  apart  from  any 
question  arising  under  the  stat- 
ute, would  treat  as  calling,  in  giv- 
en cases,  for  a  preference  or  ad- 
vantage, are  facts  and  matters 
which  must  be  considered  by  the 
Commission  in  forming  its  judg- 
ment whether  such  preference  or 
advantage  is  undue  or  unreason- 
able. When  the  section  says  that 
no  locality  shall  be  subjected  to 
any  undue  or  unreasonable  preju- 
dice or  disadvantage  in  any  re- 
spect whatsoever,  it  does  not  :noan 
that  the  Commission  is  to  regard 


§    158]  DiSCHIMINATIONR    AND    PhEFERENCES.  319 

a  sliipper  manufactui'iii^'  liiinhci-  at  Monroe,  La.,  was 
not  entitled  to  the  application  of  transit  rales  exactly 
similar  to  those  in  effect  at  Vicksburg  and  Jackson, 
Miss/'  *'It  must  be  remembered  that  not  every  inequal- 
ity in  rates  constitutes  a  violation  of  tlie  law.  Discrim- 
ination is  forbidden  only  when  it  is  unjust.  Preferences 
and  prejutlices  are  not  prohibited  unless  they  are  un- 
due."" 

§  157.  Long-  Existence  of  Undiie  Discrimination  No 
Justification  for  its  Continuance.  That  the  undue  dis- 
crimination or  unjust  preference  in  violation  of  the 
statute,  had  existed  for  a  long  time  without  correction, 
does  not  justify  the  di.«crimination  or  ])reference;  for 
a  just  equality  of  trade  for  shipper  and  locality  is  re- 
quired by  the  law,  and  the  statute  was  passed  mainly  to 
abolish  the  unjust  discriminations  between  persons, 
places,  commodities  and  traffic  which  had  continued 
for  many  years  as  the  ]iaramount  evil  chargeable  against 
the  rail  carriers  prior  to  federal  regulation.*''  ''The 
length  of  time  which  an  abuse  has  continued  does  not 
justify  it.  It  was  because  time  had  not  corrected  abuses 
of  discrimination  that  the  Interstate  Commerce  Act  was 
passed."**  Time  cannot  be  permitted  to  deprive  a 
group  of  commodities  of  their  right  to  relief  from  what, 
in  view  of  changed  conditions,  will  be  a  manifest  rate 
discrimination   if  further  continued.*^ 

§  158.  Prohibition  Against  Unjust  Discriminations 
Covers   Judgments  by   Consent   and  Waiver   of   Valid 

only    the    welfare    of    the    locality  C.  195;    Commerce  Club  of  Omaha 

or    community    where    the    traffic  v.  Chicago  &  N.  W.  R.  Co.,  7  I.  C. 

originates,  or  where  the  goods  are  c.  380. 

shipped  on  the  cars.     The  welfare  43      Kaufman  Commercial  Club 

of  the  locality  to  which  the  goods  y    Chicago  &  N.  W.  R.  Co..  7  I.  C. 

are  sent  is  also,  under  the  terms  jg„ 
and  spirit  of  the  act,  to  enter  in- 
to the  question."  ^^-     "^"'^^e  Taft  in  East  Tennes- 

41.  Adams  &  Sons  Co.  v.  Vicks-  see,  V.  &  G.  Ry.  Co.  v.  Interstate 
burg,  S  &  P.  Ry.  Co.,  29  I.  C.  Commerce  Commission,  39  C.  C. 
C    52.  A.  413,  99  Fed.  52. 

42.  Eagle  Distillery  v.  Louis-  45.  State  of  Iowa  v.  Atchison 
ville.  H.  &  St.  L.  Ry.  Co.,  32  I.  C.       T.  &  S.  F.  R.  Co.,  28  I.  C.  C.  47. 


320  Duties  to  Interstate  Shippers.  [^  158 

Defenses.  The  statute  against  unjust  discriminations 
and  undue  preferences  not  only  includes  inequality  of 
charges  and  facilities,  but  is  also  directed  against  the 
giving  of  any  preferences  by  means  of  judgments  against 
the  carrier  b}^  consent  and  by  the  waiver  of  defenses 
available  to  the  carrier.  To  permit  a  railroad  company, 
for  example,  to  plead  the  statute  of  limitation  against 
one  shipper  and  waive  it  against  another,  would  be  an 
undue  preference  against  the  one  and  an  advantage  for 
the  other  in  violation  of  the  statute  which  forbids  all 
devices  by  which  such  a  result  may  be  accomplished.^'' 

§  159.  Proof  of  Injury  and  Measure  of  Damages 
in  Actions  for  Unlawful  Discrimination.  Any  common 
carrier  subject  to  the  statute,  committing  any  act  or 
omitting  to  do  any  act  in  violation  of  sections  2  and  3 
of  the  statute  prohibiting  unjust  discrimination  and  un- 
reasonable preference,  is  liable  to  the  person  injured 
for  the  full  amount  of  the  damages  sustained  in  conse- 
quence of  such  violation,  together  with  a  reasonable  at- 
torney's fee,  to  be  fixed  by  the  court  in  every  case  of  a 
recovery  which  may  be  taxed  and  collected  as  a  part  of 
the  costs  in  the  case.*^ 

A  party  suing  for  damages  for  violation  of  these 
two  sections,  must  not  only  show  the  wrong,  but  he  must 
further  prove  that  the  wrong  operated  to  his  injury.''^ 

46.  PhiUips  V.  Grand  Trunk  under  the  act  he  must  show  not 
Western  R.  Co.,  236  U.  S.  662,  59  merely  the  wrong  of  the  carrier, 
L.  Ed.  774,  35  Sup.  Ct.  444.  but   that   that  wrong   has   in    fact 

47.  Section  8,  appendix  A,  infra.  operated    to    his    injury.      If    he 

48.  Parsons  v.  Chicago  &  N.  W.  had  shipped  to  New  York  and  been 
Ry.  Co.,  167  U.  S.  447,  42  L.  Ed.  charged  local  rates  he  might  have 
231,  17  Sup.  Ct.  887,  in  which  Mr.  recovered  any  excess  thereon  over 
Justice  Brewer  said:  "The  only  through  rates.  He  did  not  ship  to 
right  of  recovery  given  by  the  in-  New  York  and  yet  seeks  to  recov- 
terstate  commerce  act  to  the  in-  er  the  extra  sum  he  might  have 
dividual  is  to  the  'person  or  per-  been  charged  if  he  had  shipped, 
sons  injured  thereby  for  the  full  Penalties  are  not  recoverable  or 
amount  of  damages  sustained  in  mere  possibilities.  We  think, 
consequence  of  any  of  the  viola-  therefore,  without  attempting  to 
tions  of  the  provisions  of  this  act.'  take  judicial  knowledge  of  the 
So,  before  any  party  can  recover  general  order  made  by  the  Inter- 


§   ir)f)|  Discriminations  A.N'i)    Pi{i:KKHKNcr-:s.  ''>-\ 

Tlie  measure  ol"  damages  in  actions  l»y  sliippers  against 
carriers  for  unlawful  discrimination,  was  a  question 
upon  wliieh  coui-ts  formerly  disagreed,  and  tiic  conflict 
of  opinion  was  not  delinitely  removed  until  the  control- 
ling decisions  of  the  United  States  Sui)reme  Court  in 
Pennsylvania  R.  Go.  v.  International  Coal  Min.  Co." 
In  that  case  a  shipper,  without  i)roving  that  he  sustained 
any  damage,  sought  to  recover  damages  from  a  carrici- 
for  giving  a  rebate  to  another  shipper.  The  shipper 
contended  that  the  damages  should  be  assessed  on  the 
basis  of  giving  to  it  the  same  rate  on  all  its  tonnage 
that  Imd  been  allowed  to  other  shippers  on  coal  trans- 
ported, that  is,  that  the  plaintiff  was  entitled  to  a  like 
reduction  on  every  ton  of  its  coal  without  further  proof 
of  damage  or  injury.  But  the  court  refused  to  adopt 
this  view  and  held  that  the  right  to  recover  is  limited 
strictly  to  the  pecuniary  loss  suffered  and  proven.  In 
rejecting  plaintiff's  theory,  the  court  said:  "To  adopt 
such  a  rule  and  arbitrarily  measure  damages  by  rebates 
would  create  a  legalized,  but  endless,  chain  of  de- 
partures from  the  tariff;  \\ould  extend  the  effect  of  the 
original  crime,  would  destroy  the  equality  and  certainty 
of  rates,  and,  contrary  to  the  statute,  would  make  the 
carrier  liable  for  damages  beyond  those  inflicted  and 
to  persons  not  injured.  The  limitation  of  liability  to 
the  persons  damaged  and  to  an  amount  e(]ual  to  the  in- 
jury suffered  is  not  out  of  consideration  for  the  carrier 
who  has  violated  the  statute.  On  the  contrary,  the  act 
imposes  heavy  penalties,  independent  of  the  amount  of 
rebate  paid,  and  as  each  shipment  constitutes  a  separate 

state    Commerce    Commission    in  59   L.   Ed.    1414,   35   Sup.   Ct.   888; 

reference    to    the    publication    of  Meeker   v.   Lehigh   Valley   R.   Co., 

joint  tariffs,  the  plaintiff  has  fail-  236  U.  S.  412,  59  L.  Ed.  644,  35  Sup. 

ed  in  that  full  and  clear  showing  Ct.    328,    Ann.     Cas.     1916B     691; 

of    injury    which    is    necessary    in  Pennsylvania     R.     Co.    v.    W.    F. 

order  to  justify  a  recovery  under  .Tacoby  &  Co.,  242  U.  S.  89,  61  L. 

the  interstate  commerce  act."  Ed.  165,  37  Sup.  Ct.  49;   Pennsyl- 

49.      230    U.    S.    184,    57    L.    Ed.  vania  R.  Co.  v.  Sonnian  Shaft  Coal 

1446,   33    Sup.   Ct.    893,   Ann.    Cas.  Co.,  242  U.  S.  120,  61  L.  Ed.  188, 

1915A  315.     See  also  Mills  v.  Le-  :J7  Sup.  Ct.  46. 
high  Valley  R.  Co.,  238  U.  S.  473, 

1    Control    C'iirrlers    L'l 


32l^  DuriK>;  TO  Tnterstatk  SniPrHRs.  [§  159 

offense,  the  law  in  its  measure  of  fine  and  ])nnislinient 
is  a  terror  to  evil  doers.  But  for  the  public  wrong  and 
for  the  inference  with  the  equal  current  of  commerce 
these  penalties  or  tines  were  made  payable  to  the  Govern- 
ment. If  by  the  same  act  a  private  injury  was  inflicted 
a  private  right  of  action  was  given.  But  the  public 
wrong  did  not  necessarily  cause  private  damage,  and 
when  it  did,  the  pecuniary  loss  varied  with  the  character 
of  the  property,  the  circumstances  of  the  shipment  and 
the  state  of  the  market,  so  that  instead  of  giving  the 
shipper  the  right  to  recover  a  penalty  fixed  in  amount 
or  measure,  the  statute  made  the  guilty  carrier  liable  for 
the  full  amount  of  damages  sustained, — whatever  they 
might  be  and  whether  greater  or  less  than  the  rate  of 
rebate  paid." 


CHAPTER  IX 

Discriminations  Betwekn  Shippers  as  to  Rates,  Serv- 
ices, Facilities  and  Allowances 

Sec.  160.  Carrier  Must  Deal  with  All  Its  Shippers  on  Absolute  Equal- 
ity and  Must  Afford  Equal  Facilities. 

Sec.  161.  Difference  in  Rates  When  Based  Upon  Difference  in  Serv- 
ice Not  Discriminatory. 

Sec.  162.     Different  Rates  for  Wholesalers  and  Retailers  Prohibited. 

Sec.  163.  Rates  for  Train  Loads  Lower  Than  for  Single  Car  Loads 
Subject  Small   Shippers  to  Undue  Disadvantage. 

Sec.  164.  Higher  Rates  on  Domestic  Than  on  Export  Traffic  Between 
Ports  of  Pantry  and   Inland  Points  not   Discriminatory. 

Sec.  165.     Doctrine  of  Import  Case  Applied  and  Illustrated. 

Sec.  166.  Use  of  Terminal  Facilities  by  Permitting  Interchange  of 
Traffic  with  one  Carrier  and  Denying  it  to  Another. 

Sec.  167.  Discrimination  in  Reserving  Right  to  Route  Through  Ship- 
ments Beyond  Carriers  Terminal — Former  and  Present 
Rule. 

Sec.  168.  Discrimination  in  Refusal  of  Rail  Carriers  to  Establish 
Through  Routes  and  .Joint  Rates  with  Water  Lines. 

Sec.  169.  Exclusive  Privileges  for  Auxiliary  Facilities  at  Stations  and 
Terminal  Grounds  Lawful. 

Sec.  170.  Distribution  of  Cars  Among  Shippers  During  Time  of  Short- 
age Must  be  Free  from  Discrimination. 

Sec.  171.  Preferences  and  Discriminations  in  Demurrage  and  Track 
Storage  Charges. 

Sec.  172.  Unreasonable  Compensation  to  Shippers  for  Services  in 
Connection  with  Transportation. 

Sec.  173.     Abnormal  Division  of  .loint  Rates  to  Carriers  Unlawful. 

Sec.  174.  Undue  Discrimination  in  Divisions  of  Joint  Through  Rales 
to  Tap  Lines  or  Logging  Roads. 

Sec.  175.  Grant  of  Wharfage  Privileges  to  One  Shipper  Denied  to 
Others  T^nlawfnl. 

Sec.  176.  Unlawful  Discriminations  and  Preferences  in  Transit  Privi- 
leges. 

Sec.  177.  Compensation  for  Transit  Privileges  Not  Limited  to  Actual 
Cost. 

Sec.  178.  Extension  of  Transit  Privileges  Over  Twelve  Months  Unrea- 
sonable— Exceptions   Permitted. 

Sec.  179.  Carriers  May  Allow  Comiiensation  to  One  Shipper  for  Trans 
portation  Services  and  Deny  Same  Privilege  to  Another 

Sec.  180.  Contracts  Requiring  Expedited  Services  Not  Open  to  All 
Shippers  Invalid. 

Sec.  181.     Preferential  Rates  to  Other  Carriers  as  Shippers  Prohibited. 

/  1 .1  o  \ 

(oJo) 


324  Duties  to  Interstate  Shippers.  [<§  160 

Sec.  182.     Foregoing  Rules  Illustrated  and  Applied. 

Sec.  183.  Storage  Regulations  Must  Be  Enforced  Without  Preference 
or  Discrimination. 

Sec.  184.  Haulage  by  Stage  or  Wagon  from  Destination  Points  not  a 
Dissimilar  Circumstance  justifying  Lower  Rates. 

Sec.  185.  Preparing  Cars  for  Shipment  of  Commodities  for  Some 
Shippers  and  Refusing  Same  Service  to  Others. 

Sec.  186.  Grain  Elevator  Service  Must  be  Open  to  All  Shippers  With 
out  Preference. 

Sec.  187.  Allowances  When  Owner  of  Elevator  is  Shipper  of  Grain — 
Former  and  Present  Rule. 

Sec.  188.  Allowances  for  Lighterage  Services  to  Shipper  Within  Free 
Delivery  Zone  not  Discriminatory  as  to  Shipper  Beyond 
Zone. 

Sec.  189.  Rebating  Part  of  Freight  Rates  in  Payment  for  Land  for 
Right  of  Way. 

Sec.  190.  Assisting  One  Shipper  to  Collect  Private  Charges  and  Re- 
fusing Same  Service  to  Another. 

Sec.  191.  Discrimination  in  Demanding  Cash  Payment  of.  Some  Ship- 
pers and  Extending  Credit  to  Others — Conflicting  Deci- 
sions. 

Sec.  192.  Deduction  from  Freight  Rates  to  Pay  Shipper  for  Building 
Tie  Hoist  Invalid. 

Sec.  193.  Difference  in  Rates  on  Freight  Not  Justified  by  Different 
Method  of  Loading. 

Sec.  194.  Carrier  "Spotting''  Cars  for  One  Shipper  and  Refusing  Same 
Service  to  Another  Similarly  Situated. 

Sec.  195.  Trap  Car  Service  Not  Unlawful  If  Practiced  Without  Dis- 
crimination. 

§  160.    Carrier  Must  Deal  with  All  Its  Shippers  on 
Absolute  Equality  and  Must  Afford   Equal   Facilities. 

The  statute  recognizes  tliat  it  is  not  a  proper  business 
of  a  common  carrier  to  foster  particular  enterprises  or 
to  build  up  new  industries  by  discriminatory  practices 
and  unjust  preferences.  Deriving  its  franchises  from 
the  state,  and  depending  upon  the  law  of  the  people  for 
its  existence,  a  carrier  is  bound  to  deal  fairly  with  the 
public,  to  extend  to  them  reasonable  facilities  for  the 
transportation  of  persons  and  property,  and  to  put  all 
their  patrons  on  an  absolute  equality.^ 

The  carrier  is  bound  by  every  principle  of  justice 
and  law  to  accord  equal  rights  to  all  shippers  who  are 

1.     Union  Pac.  Ry.  Co.  v.  Good-       ridge,  149  U.  S.  680,  37  L.  Ed.  896, 

13  Sup.  Ct.  970. 


§   HK) 


DlSCRIMIXATlOX    AS    TO    RaTKS,    F.TC 


:?2."3 


(Mil  it  led  to  like  treatment,  botli  in  the  rcfcivin'z:  of  suj>- 
])lies  and  sliii)ment  of  thcii'  piodufts,  and  a  carrier  wlio, 
under  any  [pretext  whatever,  .^-rants  to  one  .sliipjx'r  an 
advantage  which  it  denies  to  another,  violat<'s  the  spii'it 
and  tliwarts  Ihc  purpose  of  the  statute.^ 

Wlien,  therefore,  two  lailroad  eompanics.  Joint 
owners  of  a  connecting-  spur  terminating  at  a  dock, 
make  a  charge  of  two  dollars  per  car  against  one  shipper 
from  a  point  on  the  dock  in  addition  to  the  published 
rate,  and  make  no  similar  charge  against  another  shi])- 
))er  similarly  situated,  such  a  practice  constitutes  an  nn- 
just  discrimination  in  violation  of  the  statute.^  And 
where  it  ap])eai'ed  that  a  In'ewing  com}iany,  a  large 
shipper,  organized  a  sepai'ate  transit  conii)any  which  re- 
ceived commission  from  a  carrier  under  the  pretense 
that  such  demands  were  made  for  soliciting  business 
for  the  carrier,  the  whole  scheme,  it  was  held,  was  a 
mere  device  to  evade  the  statute  against  discrimination.* 


2.  Castle  v.  Baltimore  &  0.  R. 
Co.,  8  I.  C.  C.  333. 

3.  Ohio  Coal  Co.  v.  Whitcomb, 
59  C.  C.  A.  487.  123  Fed.  359. 

4.  United  States  v.  Milwaukee 
Refrigerator  Transit  Co..  142  Fed. 
247,  in  which  the  Court  said:  "Im- 
mediately on  the  creation  of  the 
transit  company  the  Pabsts,  as 
controlling  officers  of  the  brew- 
ing company,  contracted  with 
(hemselves  as  executive  officers  of 
the  transit  company,  for  a  term 
not  yet  expired,  to  give  the  latter 
exclusive  control  of  the  shipment 
of  all  freight  of  the  brewing  com- 
pany moving  in  interstate  and  for- 
eign commerce,  which  it  Is  still 
exercising.  The  contract  was  made 
to  enable  the  transit  company  to 
route  the  shipment  of  such  freight 
on  the  lines  of  such  companies  as 
will  pay  rebates,  and  withhold  it 
from  such  as  will  not :  and  all 
the  rebates,  concesions,  and  dis- 
criminations charged  in     the  bill 


have  been  exacted  by  threats  of 
such  diversion.  Many  thousand 
tons  of  said  freight  have  been 
hauled  by  defendant  carriers  since 
the  contract  was  made.  On  such 
shipments  the  brewing  compan:* 
pays  to  the  carriers  the  full  tariff 
rate,  and  the  carriers  pay  the 
transit  company  for  the  use  of 
its  refrigerator  cars  for  mileage 
three-fourths  of  a  cent  to  a  cent 
per  mile,  and  in  addition  an  eighth 
or  tenth  of  the  sums  paid  them  by 
the  brewing  company:  and  in 
every  instance  the  property  is 
transported  by  defendant  carriers 
at  an  eighth  or  tenth  less  than  the 
published  tariff.  Such  rebates 
amount  to  many  thousands  of  dol- 
lars, the  exact  sum  unknown  to 
complainants.  All  the  defendant 
carriers  well  knew  that  the  transit 
company  was  organized  in  the  in- 
terest of  the  brewing  company, 
and  for  the  purpose  of  evading  the 
law.   and    paid    such    rebates   with 


326 


Duties  to  Ixtki^^tatk  Shipi'khs. 


^   101 


§  161.  Difference  in  Rates  When  Based  Upon  Dif- 
ference in  Service  Not  Discriminatory.  For  a  like  ser- 
vice the  public  is  entitled  to  a  like  price;  but  the  princi- 
ple of  equality  among  shippers  similarly  situated  does 
not  forbid  a  difference  in  charge  which  is  based  upon 
a  difference  in  service.  The  charge,  however,  when 
based  u]ion  a  difference  in  service  should  have  a  reason- 
able relation  to  the  amount  of  difference  and  cannot  be 
so  great  as  to  produce  an  unjust  discrimination.^ 

An  advantage  accorded  which  fixes  the  value  of  the 
service  to  the  shipper  and  its  cost  to  the  carrier  may 
be  made,  provided  such  a  special  service  is  open  to  all 
others  similarly  situated.^  Thus  the  greater  cost  of  car- 
riage and  risk  of  injury  constitute  a  difference  which 
entitles  a  carrier  to  charge  a  higher  rate  for  carrying 


the  like  purpose  and  intent.  The 
transit  company  claims  and  pre- 
tends that  such  repayments  were 
made  and  accepted  as  compensa- 
tion for  its  services  in  soliciting 
and  procuring  freight  for  carriage 
by  defendants:  but  such  claim  or 
pretense  is  untrue.  The  transit 
company  has  entire  control  of  all 
the  shipping  business  of  the  brew- 
ery, comprising  almost  the  entire 
business  of  the  transit  company, 
which  it  does  not  solicit;  the  only 
possible  consideration  moving 
from  it  to  the  carrier  being  its 
refraining  to  -divert  the  business. 
All  such  repayments  have  always 
been  known  to  all  said  parties  to 
be  a  device  for  unlawful  rebate, 
concession,  and  discrimination. 
But  such  payments  constitute  un- 
lawful concession  and  discrimina- 
tion, whether  or  not  the  transit 
company  solicits  the  shipments, 
which,  if  not  so  solicited  and  pro- 
cured, would  be  diverted  from  the 
carrier  so  paying." 

.5.  Interstate  Commerce  Com- 
mission v.  Chicago  Great  Western 
Ry.  Co.,  209  U.  S.  108,  52  L.  Ed. 
705,    28    Sup.    Ct.    49.3;     Penn    Re- 


fining Co.  V.  Western  New  York 
&  P.  R.  Co.,  208  U.  S.  208,  52  L. 
Ed.  456,  28  Sup.  Ct.  268;  Cincin- 
nati, H.  &  D.  R.  Co.  V.  Interstate 
Commerce  Commission,  206  U.  S. 
142,  51  L.  Ed.  995,  27  Sup.  Ct.  648; 
Western  U.  Tel.  Co.  v.  Call  Pub. 
Co.,  181  U.  S.  92,  45  L.  Ed.  765, 
21  Sup.  Ct.  561;  Interstate  Com- 
merce Commission  v.  Detroit,  G. 
H.  &  M.  Ry.  Co.,  167  U.  S.  633.  42 
L.  Ed.  .306,  17  Sup.  Ct.  986;  Inter- 
state Commerce  Commission  v. 
Baltimore  &  O.  R.  Co.,  145  U.  S., 
263,  36  L.  Ed  699,  12  Sup.  Ct.  844; 
Interstate  Commerce  Commission 
V.  Chicago  Great  Western  Ry.  Co., 
141  Fed.  1003;  Interstate  Com- 
merce Commission  v.  Baltimore  S-. 

0.  R.  Co.,  43  Fed.  37;  Burlington, 
C.  R.  &  N.  Ry.  Co.  v.  Northwestern 
Fuel  Co..  31  Fed.  652;  Gator  v. 
Southern  P.  Co.,  6  I.  C.  C.  113,  4 

1.  C.  R.  397;  Rice  v.  Cincinnati,  W. 
&  B.  R.  Co.,  5  I.  C.  C.  193.  3  I.  C.  '^. 
841;  Savery  &  Co.  v.  New  York 
Cent.  &  H.  River  R.  Co.,  2  I.  C.  C. 
.338.  2  I.  C.  R.  210. 

6.  Chicago  &  A.  R.  Co.  v.  Kir- 
by,  225  U.  S.  155,  56  L.  Ed.  1033, 
32  Sup.  Ct.  648,  Ann.  Cas.  1914A 


§    IGl]  J)ISCK1MIXAT1()X    AS     I  « )    liAIKS,    KIC. 


livestock  than  for  carrying  livestock  products/  In 
fact,  the  circumstances  which  produce  an  inequality  of 
conditions,  justifies  an  inequality  of  charges." 

AVhon  a  carrier  renders  a  special  service,  such  as 
rapid  transit  and  speedy  delivery  of  perishable  freight, 
it  is  justified  in  charging  a  higher  rate  than  for  the 
transportation  of  ordinary  freight.'-*  A  higher  charge 
for  the  transportation  of  oil  in  tank  cars  than  for  the 
carriage  of  oil  in  barrels  has  been  justified.'"  Differen- 
ces in  charges  and  rates  may,  therefore,  be  made  in  pro- 
portion to  the  cost  and  value  of  the  service." 


501,  in  which  the  court  said:  "But 
the  company,  by  entering  into  an 
agreement  for  expediting  the  ship- 
ment, came  under  a  liability  dif- 
ferent and  more  burdensome  than 
would  exist  to  a  shipper  who  made 
no  such  special  contract.  For  such 
a  special  service  and  Ijigher  re- 
sponsibility it  might  clearly  exact 
a  higher  late.  But  to  do  so  it  must 
make  and  publish  a  rate  open  to 
all.  This  was  not  done.  The 
shipper,  it  is  also  plain,  was  con- 
tracting for  an  advantage  which 
was  not  extended  to  all  others,  both 
in  the  undertaking  to  carry  so  as 
to  give  him  a  particular  expedited 
service,  and  a  remedy  for  delay 
not  due  to  negligence.  An  advan- 
tage accorded  by  special  agree- 
ment which  affects  the  value  of 
the  service  to  the  shipper  and  its 
cost  to  the  carrier  should  be  pub- 
lished in  the  tariffs,  and  for  a 
breach  of  such  a  contract,  relief 
will  be  denied,  because  its  allow- 
ance without  such  publication  is 
a  violation  of  the  act.  It  is  also 
illegal  because  it  is  an  undue  ad- 
vantage in  that  it  is  not  one  open 
to  all  others  in  the  same  situation. 
*  *  *  The  broad  purpose  of  the 
Commerce  Act  was  to  compel  the 
establishment  of  reasonable  rates 
and     their     uniform     application. 


That  purpose  would  be  defeated  if 
sanction  is  given  to  a  special  con- 
tract by  which  any  such  advan- 
tage is  given  to  a  particular  ship 
per  as  that  contracted  for  by 
the  defendant  in  error.  To  guar- 
antee a  particular  connection  and 
transportation  by  a  particular 
train,  was  to  give  an  advantage 
or  preference  not  open  to  all  and 
not  provided  for  in  the  published 
tariffs." 

7.  Interstate  Commerce  Com- 
mission v.  Chicago  Great  Western 
Ry.  Co.,  209  U.  S.  108.  52  L.  Kd., 
705.  28  Sup.  Ct.  493. 

8.  Interstate  Commerce  Com- 
mission V.  Baltimore  &  0.  R.  Co.. 
145  U.  S.  263.  3G  L.  Ed.  699,  12 
Sup.  Ct.  844. 

9.  Loud  V.  South  Carolina  Ry. 
Co.,  5  I.  C.  C.   529,  4  I.  C.  R.  205. 

10.  Penn  Refining  Co.  v.  West- 
ern New  York  &  P.  R.  Co..  208  U. 
S.  208,  52  L.  Ed.  456,  28  Sup.  Ct. 
268. 

11.  Kansas  Pac.  Ry.  Co.  v. 
Bayles,  19  Colo.  348,  35  Pac.  744: 
Bayles  v.  Kansas  Pac.  R.  Co.,  13 
Colo.  181.  5  L.  R.  A.  480,  22  Pac. 
:?41:  Scofleld  v.  Lake  Shore  &  M. 
S.  Ry.  Co..  43  Ohio  St.  571.  54  Am. 
Rep.  846.  3  X.  E  907:  Hoover  v. 
Beech  Creek  R.  Co.,  154  Pa.  St. 
362.  26  Atl.  315. 


328 


Duties  to  Intkhsta'i'k  Shippeks. 


[§  10: 


§  162.  Different  Rates  for  Wholesalers  and  Re- 
tailers Prohibited.  Arrangeiuonts  or  contracts  with 
common  carriers  whereby  persons  shipping  a  larger 
amount  of  traffic  should  have  their  goods  carried  on  more 
favorable  terms  than  those  shipping  a  less  quantity,  were 
formerly  upheld/-  but  are  now  generally  condemned  as 
being  unjustly  discriminative.^^ 

If  such  a  rule  were  established  among  railroads, 
■the  small  shippers  would  soon  be  eliminated.  To  grant 
one  shipper  a  lower  rate  than  his  competitor  in  business 
solely  because  he  is  able  to  furnirh,  and  does  furnish  a 
larger  quantity  for  shipment,  would  force  the  small  com- 
petitor  to  abandon  the  unequal  contest  and  destroy  the 
equality  of  treatment  which  is  the  purpose  of  the  stat- 
ute." 

While  it  is  true  that  the  services  for  the  large  deal- 
er would  be  somewhat  less  in  proportion  to  the  freight 
carried    than    for    like    services    for    the    small    dealer, 


12.  Unitad  States.  John  Hays 
&  Co.  V.  Pennsylvania  Co.,  12  Fed. 
309. 

lUinois.  Savitz  v.  Ohio  &  M.  R. 
Co.,  150  111.  208,  37  N.  E.  235,  aff'g 
49  111.  App.  315. 

Iowa.  Cook  V.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  81  Iowa  551,  9  L.  R. 
A.  764,  25  Am.  St.  Rep.  512,  46  N. 
W.   1080. 

Missouri.  Rothschild  v.  Wabash 
St.  L.  &  P.  Ry.  Co.,  92  Mo.  91.  4  S. 
W.  418. 

New  Hampshire.  Concord  &  P. 
R  Co.  V.  Forsaith,  59  N.  H.  122, 
47  Am.  Rep.  181. 

New  York.  Silkman  v.  Board  of 
Wf  ter  Com'rs  of  City  of  Yonkers, 
152  N.  Y.  327,  37  L.  R.  A.  827,  ■IG 
N.  E.  612. 

Vermont.  State  v.  Central  Ver- 
mont R.  Co.,  81  Vt.  463,  130  Am. 
St.  Rep.  1065,  71  Atl.  194. 

13.  United  States  v.  Tozer,  39 
Fed.  369;  Kinsley  v.  Buffalo,  N. 
Y  &  P.  R.  Co.,  37  Fed.  181;  Plan- 
ters' Comprtfs  Co.  v.  Cleveland,  C. 


C.  &  St.  L.  Ry.  Co  ,  11  I.  C.  C.  382; 
Glade  Coal  Co.  v.  Baltimore  &  O. 
R.  Co.,  10  I.  C.  C.  226;  Paine  Bros. 
&.  Co.  V.  Lehigh  Valley  R.  Co.,  7 
T  C.  C.  218;  Re  Alleged  Unlawful 
Charges  for  Transportation  of 
Coal,  5  I.  C.  C.  466,  4  I.  C.  R.  157; 
Harvard  Co.  v.  Pennsylvania  Co.,  4 
I.  C.  C.  212,  3  I.  C.  R.  257. 

14.  Burlington,  C.  R.  &  N.  Ry. 
Co.  V.  Northwestern  Fuel  Co.,  31 
Fed.  652;  Scofield  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  43  Ohio  St.  571, 
54  Am.  Rep.  846,  3  N.  E.  907.  In 
these  two  cases,  the  courts  approv- 
ed the  following  statement  of  the 
law  by  Judge  Baxter:  "The  dis- 
crimination complained  of  rested 
exclusively  on  the  amount  of 
freight  supplied  by  the  respective 
shippers  during  the  year.  Ought  a 
discrimination  resting  exclusively 
on  such  a  basis  to  be  sustained? 
If  so,  then  the  business  of  the 
country  is  in  some  degree  subject 
to  the  will  of  railroad  officials:  for 
if  one  man  engaged  in  mining  coal, 


^  ir)2i 


Discrimination  as  to  Rates,  etc. 


32i) 


this  is  l)iit  an  item  of  reduced  cost  that  can  only  be  vcr- 
mitted  in  strict  subordination  to  the  ruU^s  of  law  which 
forbid  discrimination  b('tw<'en  dealei's.'''  "But  when 
a  (juestioii  of  rebates  or  discounts  is  under  considera- 
tion," said  ('Ommissioner  Cooley  in  the  last  case  cited, 
''it  might  be  misleading-  to  consider  them  in  the  light  of 


and  dependent  on  the  same  rail- 
road for  transportation  to  the 
same  market,  can  obtain  trans- 
portation thereof  at  from  twenty- 
five  to  fifty  cents  per  ton  less 
than  another  competing  with  him 
in  business,  solely  on  the  ground 
that  he  is  able  to  furnish,  and 
does  furnish,  a  larger  quantity  for 
shipment,  the  small  operator  will, 
sooner  or  later,  be  forced  to  aban- 
don the  unequal  contest,  and  sur- 
render to  his  more  opulent  rival. 
If  the  principle  is  sound  in  its  ap- 
plication to  rival  parties  engaged 
in  mining  coal,  it  is  equally  appli 
cable  to  merchants,  manufacturers, 
millers,  dealers  in  lumber  and 
grain,  and  to  everybody  else  inter- 
ested in  any  business  requirin-', 
any  considerable  amount  of  tratis- 
portation  by  rail;  and  it  follows 
that  the  success  of  all  such  en 
terprises  would  depend  as  mufb 
on  the  favor  of  railroad  officials  as 
upon  the  energies  and  capacities 
o"  the  parties  prosecuting  the 
same.  It  is  ni.t  difficult,  with  such 
a  ruling,  to  forecast  the  conse- 
quences. The  men  v.'ho  control 
railroads  would  be  quick  to  appre- 
ciate the  power  with  which  such 
a  holding  would  invest  them,  and. 
it  may  be,  not  slow  to  make  the 
most  of  their  opportunities  and. 
perhaps,  tempted  to  favor  their 
friends  to  the  detriment  of  their 
personal  or  political  opponents;  or 
demand  a  division  of  the  jirofits 
realized  from  such  collateral  pur 
suits  as  could  be  favored  or  de- 
pressed by  discriminations  for  or 


against  them;  or  else,  seeing  the 
augmented  power  of  capital,  or- 
ganize into  overshadowing  combi- 
nations, and  extinguish  all  petty 
competition,  monopolize  business, 
and  dictate  the  price  of  coal  and 
every  other  commodity  to  consum- 
ers. We  say,  these  results  might 
follow  the  exercise  of  srch  a  right 
as  is  claimed  for  railroads  in  this 
case.  But  we  think  no  such  po.ver 
exists  in  them.  They  have  been 
authorized  for  the  common  benefit 
of  every  one,  and  cannot  be  lawful- 
ly manipulated  for  the  advantage 
of  any  class  at  the  expense  of  any 
other.  Capital  needs  no  such  ex- 
traneous aid.  It  possesses  inher- 
ent advantages  which  cannot  be 
taken  from  it.  But  it  has  no  just 
claim,  by  reason  of  its  accumulat- 
ed strength,  to  demand  the  use  of 
the  public  highways  of  the  coun- 
try, constructed  for  the  common 
benefit  of  all,  on  more  favorable 
terms  than  are  accorded  to  the 
humblest  of  the  land;  and  a  dis- 
crimination in  favor  of  parties  fur- 
nishing the  largest  quantity  of 
freight,  and  solely  on  that  ground, 
is  a  discrimination  in  favor  of 
capital,  and  is  contrary  to  a  sound 
public  policy,  violative  of  that 
equality  of  right  guaranteed  to 
every  citizen,  and  a  wrong  to  the 
disfavored  party,  for  which  the 
courts  are  competent  to  give  re- 
dress." 

15.  Providence  Coal  Co.  v.  Prov- 
idence &  W.  R.  Co..  1  I.  C.  C.  107, 
1  I.  C.  R.  3fir,. 


330  Dr  II  F.S    TO    TXTHRSTATK    SlIlPl'F.HS.  [§     102 

the  principles  wliit'li  niorehants  act  upon  in  the  case  of 
wliolesale  and  retail  tiansactions.  There  is  a  very  mani- 
fest difficulty  in  applyin<>-  those  principles  to  the  con- 
veniences which  common  carriers  furnish  to  the  public, 
a  difficulty  which  springs  from  the  nature  of  the  duty 
which  such  carriers  owe  to  the  public.  That  duty  is 
one  of  entire  i^artiality  of  service.  The  merchant  is 
under  no  corresponding-  duty,  and  may  make  his  rules 
to  suit  his  own  interest,  and  discriminate  as  he  pleases. 
There  is  no  occasion  to  enlarge  u]xm  this  now.  A  dis- 
crimination, such  as  the  offer  and  its  acceptance  by  one 
or  more  dealers  would  create,  must  have  a  necessary 
tendency  to  destroy  the  business  of  small  dealers.  Under 
the  evidence  in  the  case  it  appears  almost  certain  that 
this  destruction  must  result,  the  margin  for  profit  on 
wholesale  dealings  in  coal  being  very  small.  The  dis- 
crimination is  therefore  necessarily  unjust  within  the 
meaning  of  the  law.  Tt  cannot  be  supported  by  the  cir- 
cumstance that  the  offer  is  o])en  to  all;  for  although 
made  to  all,  it  is  not  possible  that  all   should  accept." 

§  163.  Rates  for  Train  Loads  Lower  than  for 
Single  Car  Loads  Subject  Small  Shippers  to  Undue 
Disadvantage.  Tjower  rates  on  train  load  shipments 
than  on  carloads  have  generally  been  condemned  for 
such  a  distinction  violates  the  principle  of  equality  be- 
tween shippers  and  tends  to  defeat  its  just  and  whole- 
some purpose.^®  The  fact  that  certain  traffic  is  hauled 
in  train  loads,  the  Commission  has  held,  cannot  be  made 
the  basis  of  rates  different  from  those  applied  io  ship- 
ments in  single  carloads."  In  Paine  Bros.  &  Co.  v. 
Lehigh  Valley  R.  Co.,^''  it  appeared  that  the  carriers  put 
into  effpct  on  grain  from  western  ytoints  to  Buffalo  by 
the  Great  Lakes  and  destined  for  certain  Atlanfic  ports 

16.     Rickards  v.  Atlantic  C.  Tj.  17.      Woodward-Bennett    Co.    v. 

R.  Co.,  23   I.  C.  C.  239;    Carstens  San  Pedro,  L.  A.  &  S.  L.  R.  Co.,  29 

Packing  Co.  v.  Oregon  Short  L.  R.  T.  C.  C.  6(54. 

Co.,  17  T.  C.  C.  324;  Planters'  Com-  18.     Paine  Bros.  &  Co.  v.  Lehigh 

pre.sR  Co.  V.  Cleveland.  C.  C.  &  St  Valley  R.  Co.,  7  I.  C.  C.  218. 
L.  Ry.  Co.,  11  I.  C.  C.  382. 


§   1()41  Discrimination'  as  to  Haii:>,  in.  331 

lower  rates  for  cargo  lots  of  8,000  bushels  or  over  than 
for  lots  of  less  than  said  specified  number  of  bushels. 
It  was  contended  tliat  such  rates  gave  the  larger  dealer 
a  monopoly  of  the  business  and  subjected  the  complainant, 
a  shipi)er  of  small  (piantities,  to  unreasonable  i)rejudice 
and  disadvantage  in  violation  of  section  .'J.  in  condemn- 
ing such  distinctions  in  latcs,  the  Commission  said: 

"But  conceding  that  lower  rates  on  export  than  on 
domestic  grain  may  be  properly  allowed,  we  perceive 
no  sufficient  reason  for  different  rates  on  carload  than 
on  cargo  or  train  load  shipments,  whether  grain  is  car- 
ried for  export  or  domestic  use.  The  principle  involved 
in  such  a  distinction  violates  the  rule  of  equality  and 
tends  to  defeat  its  just  and  wliolesome  purpose.  That 
puri)ose  is  not  fully  accomi)lished  if  one  scale  of  charges 
is  applied  to  cargo  shipments  and  a  higher  rate  is  im- 
l)osed  for  single  carloads,  even  though  all  cargo  ship- 
pers pay  the  same  and  all  carload  shippers  are  charged 
alike."* 

§  164.  Higher  Rates  on  Domestic  Than  on  Ex- 
port Traffic  Between  Ports  of  Entry  and  Inland 
Points  not  Discriminatory.  The  provisions  of  the  second 
section  prohibiting  "unjust"  discriminations  imply  that, 
in  deciding  whether  differences  in  charges,  in  given  cases, 
are  unjust,  there  must  be  a  consideration  of  the  several 
(j[uestions  whether  the  services  rendered  were  ".like  and 
contemporaneous,"  whether  the  kinds  of  traffic  were 
"like"  and  whether  the  transportation  was  effected  un- 
der "substantially  similar  circumstances  and  condi- 
tions." Conditions  existing  abroad,  as  well  as  those 
existing  in  the  United  States,  should  be  considered.  The 
interest  of  the  carrier  and  the  consuming  community 
as  well  as  the  producing  comiiuuiity  must  ))e  taken  in- 
to account. 

There  is,  therefore,  no  hard  and  fast  rule  whicli 
prohibits  a  carrier  in  furtherance  of  its  own  interest 
and  the  interests  of  its  patrons,  from  accepting  a  less 
sum  for  the  transportation  of  imported  merchandise 
from  a  port  of  entry  to  an  i;iterior  point  or  the  trans- 


ooJ 


Duties  to  Ixtkkstate  Shippers. 


[§  1G4 


portation  of  export  traffic  from  an  interior  point  to  a 
port  oi  Iransshipmont  tluui  it  does  tor  tlie  transportation 
of  domestic  mercliandiso  between  the  same  points. ^^ 
Among  the  ( ircumstances  and  conditions  to  be  considered 
in  determining  the  relative  rates  on  traffic  originating  in 
foreign  ports  and  ti'affic  originating  within  the  limits  of 
the  United  States  are  competition,  and  lower  rates  to 
secure  foreign  freigiit  which  would  otherwise  go  by 
other  competitive  routes  are  not  undue  or  unjust.-" 


§  165. 


Doctrine  of  Import  Case  Applied  and  Illus- 
trated. Following  the  decision  of  the  Supreme  Court 
in  Texas  &  P.  Ry.  Co.  v.  Interstate  Commerce  Commis- 


19.  Texas  &  P.  R.  Co.  v.  In- 
terstate Commerce  Commissiou. 
162  U.  S.  197,  40  L.  Ed.  940,  16 
Sup.  Ct.  606:  Kemble  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  8  I.  C.  C. 
110. 

20.  Pittsburgh  Plate  Glass  Co. 
V  Pittsburgh.  C.  C.  &  St.  L.  Ry. 
Co.,  13  I.  C.  C.  87,  in  which  Com- 
missioner Clements  said:  "It  is 
clear  that  in  considering  the  ques- 
tion of  alleged  unjust  discrimina- 
tion in  favor  of  shippers  of  im- 
port glass  moving  from  the  ports 
oi  entry  in  this  and  adjacent  for- 
eign countries  to  interior  Ameri- 
can destinations,  and  against  do- 
mestic shipments  of  glass  between 
points  in  the  United  States,  it  is 
the  duty  of  the  Commission  to 
look  to  the  circumstances  and  con- 
ditions affecting  the  matters  in- 
volved, not  only  in  this  country, 
but  in  the  entire  field  of  commerce 
here  and  abroad.  In  other  words, 
'whatever  would  be  regarded  by 
common  carriers,  apart  from  the 
operation  of  the  statute,  as  mat- 
ters which  warranted  differences 
in  charges'  ought  to  be  considered 
in  forming  a  judgment,  whether 
such  differences  were  or  were  not 
unjust,    and    the    circumstance    of 


competition  by  ocean  carriers  at 
the  different  ports  is  a  fact  merit- 
ing consideration  by  the  Commis- 
sion in  passing  upon  the  rea- 
sonableness of  an  inland  rate  ap- 
plicable from  the  seaboard  on  do- 
mestic traffic  when  the  reasonable- 
ness of  such  rate  is  called  in  ques- 
tion by  comparison  with  a  lower 
rate  applying  from  the  port  of  en- 
try on  traffic  shipped  from  a  for- 
eign country.  Not  all  discrimina- 
tions are  unlawful,  but  only  such 
as  are  undue  or  unreasonable;  if 
based  on  reason  and  good  cause, 
difecrimination  can  not  be  con- 
demned as  unreasonable.  It  is  well 
settled  by  the  highest  judicial  au- 
thority that  the  existence  and  ef- 
fectiveness of  competition  between 
carriers,  whether  by  rail  or  wa- 
ter, whether  subject  to  the  Fed- 
eral act  of  regulation  or  not,  and 
competition  of  markets,  or  the  ab- 
sence of  such  competition,  are 
among  other  things,  pertinent  to 
the  question  of  similarity  of  cir- 
cumstances and  conditions  in- 
volved in  the  ultimate  question  of 
fact  under  sections  3  and  4,  and 
as  to  whether  the  discrimination 
complained  of  and  shown  is  or  is 
not  undue  or  unreasonable.    Since, 


§  l(i5] 


DlSCHIMIXATFOX    AS    'lO    IJa'I'KS.    ETC, 


sioD,^''  known  as  the  Import  Rate  Case,  tlie  Commission 
has  repeatedly  recognized  tlie  right  of  carriers  to  main- 
tain lower  rates  on  import  traflSc  than  on  domestic  traf- 
fic. When  the  circumstances  and  conditions  are  dis- 
similar the  imported  goods  may  be  transported  under 
rates  which  are  lower  than  the  rates  charged  on  goods 
of  the  same  kind  which  have  not  been  imported.  The 
question    of   discrimination    or   whether   the   difference 


in  view  of  these  rulings,  it  is  the 
duty  of  the  Commission  in  pass- 
ing upon  these  questions  to  look 
to  these  and  other  facts,  wherever 
found,  pertaining  to  the  traffic  in- 
volved, upon  the  theory  that  the 
carriers  may  lawfully  within  rea- 
son meet  the  circumstances  and 
conditions  which  confront  them,  it 
follows  that  we  must  recognize 
the  due  and  logical  effect  of  the 
situation  thus  presented.  The 
necessary  conclusion  is  that  dis- 
criminations of  the  nature  refer- 
red to  in  sections  3  and  4  of  the 
act,  in  so  far  as  they  result  from 
the  bona  fide  action  of  a  carrier 
in  meeting  circumstances  and  con- 
ditions not  of  its  own  creation, 
and  which  are  reasonably  neces- 
sary for  that  purpose,  do  net  of 
necessity  fall  under  the  condem- 
nation of  the  law.  There  is  a  long 
line  of  decisions  of  the  court  to 
the  effect  that  it  is  neither  requir- 
ed by  law  nor  just  that  the  rates 
of  a  carrier  on  traffic'  subject  to 
intense  competition  shall  mark  the 
limit  or  measure  of  its  rates  on 
traffic  not  subject  to  such  com- 
petition. Transportation  from  a 
seaport  of  the  United  States  or  an 
adjacent  foreign  country  to  an  in- 
terior American  destination  in 
completion  of  a  through  move- 
ment of  freight  from  a  port  of  a 
foreign  but  not  adjacent  country, 
whether  upon  a  joint  through  rate 
or  upon  a  separately  established, 


or  proportional,  inland  rate  ap- 
plicable only  to  imports  moving 
through,  is  not  a  'like  service'  to 
that  of  the  transportation  inde- 
pendent and  complete  within  it- 
self of  traffic  starting  at  such  do- 
mestic port,  though  bound  for  the 
same  destination.  It  is  true  the 
court  held  in  the  case  of  Wight 
V.  United  States,  167  U.  S.  512,  42 
L.  Ed.  258,  17  Sup.  Ct.  Rep.  822, 
that  the  existence  of  competition 
did  not  create  'dissimilar  circum- 
stances and  conditions'  such  as  to 
justify  discrimination  as  defined 
in  the  second  section.  But  this 
referred  to  unjust  discrimination 
as  between  different  shippers  ovor 
the  same  line  in  the  performance 
of  a  'like  service,'  and  as  we  have 
seen,  the  transportation  of  import 
traffic  from  the  port  of  entry  to  an 
interior  destination  in  completion 
of  ^a  through  movement  from  a 
point  in  a  foreign  country  is  not 
a  like  service  to  that  involved  in 
the  transportation  of  domestic  traf- 
fic originating  at  such  port,  even 
where  the  transportation  in  all 
other  respects  is  performed  under 
like  conditions.  It  follows  that 
the  charge  of  unjust  discrimination 
in  violation  of  section  2  of  the  act 
i.-;  not  sustained." 

21.  Texas  &  P.  R.  Co.  v.  Inter- 
state Commerce  Commission,  162 
U.  S.  197,  40  L.  Ed.  940,  16  Sup. 
Ct.    666. 


334  I)rTiF.s  TO  Intkrstatk  Shippkhs.  [§  ]()5 

between  the  import  and  dojuestic  rate  is  unjust,  is  one 
of  fact  to  be  determined  by  the  Commission  after  con- 
sidering all  the  circumstances  and  conditions,  including 
the  interests  of  the  carriers,  producers,  dealers  and  con- 
sumers. 

In  Louisiana  Sugar  Planters'  Association  v.  Illi- 
nois Cent.  R.  Co.,"  a  rate  of  twenty-one  cents  on  black- 
strap molasses  from  New  Orleans  and  other  Louisiana 
points  to  St.  Louis  was  held  to  be  unjustly  discrim- 
inatory as  compared  with  a  rating  of  fifteen  cents  on 
imported  black-strap  molasses  between  the  same  points; 
but  a  difference  not  greater  than  three  cents  per  hun- 
dred pounds  was  found  to  be  proper.  In  another  case, 
a  third-class  rating  on  domestic  plate  glass  and  a  fourth- 
class  rating  or  lower  on  imported  plate  glass,  was  held 
not  to  be  unjustly  discriminatory."^  In  an  investigation 
concerning  the  rates  governing  the  transportation  from 
ports  of  entry  to  interior  points  in  the  United  States 
of  property  imported  from  foreign  countries  and 
the  relationship  existing  between  such  rates  and  the 
rates  for  transporting  similar  property  originating  in 
the  United  States,  the  Commission  found  that  the  im- 
port rates  on  brewers'  rice  from  Gulf  points  were  not 
made  with  relation  to  the  domestic  rates,  but  were  con- 
trolled by  the  import  rates  on  brewers'  rice  from  North 
Atlantic  ports.^* 

In  a  later  case,^^  an  adjustment  of  import  rates  on 
English  clay  from  Gulf  ports  and  North  Atlantic  ports 
to  points  in  Central  Freight  Association  Territory  lower 
than  the  domestic  rates  on  clay  mined  in  the  state  of 
Georgia  to  the  same  destinations,  was  found  not  to  be 
unjustly  discriminatory  against  the  domestic  traffic. 

§  166.  Use  of  Terminal  Facilities  by  Permitting- 
Interchange  of  Traffic  with  one  Carrier  and  Denying  it 
to   Another.     Under   the   Hepburn    Amendment   to   the 

22.  Louisiana    Sugar     Planters'  24.    In  re  Import  and  Domestic 
Ass'n.  V.   Illinois  Cent.  R.  Co.,  31      Rates,  36  I.  C.  C.  389. 

I.  C.  C.  311.  25.    In  re  Import  and  Domestic 

23.  Pittsburg  Plate  Glass  Co.  v.       Rates  on  Clay,  39  I.  C.  C.  132. 
Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co., 

13  I.  C.  C.  87. 


<§>    KiGj  DlSCKlMlNATKJN    AS   TU    KaTKS,    ETC.  335 

/ 

Interstate  Commerce  Act,  tlie  terms  '' transportation" 
and  ''railroad"  subject  to  tlie  control  of  the  Commis- 
sion, include  all  switches,  tracks,  terminal  facilities 
and  all  services  in  connection  with  the  delivery  and 
transfer  of  interstate  freight.  The  terminal  facilities 
therefore  of  any  railroad  used  in  connection  with  the 
receipt  and  delivery  of  freight  transported  in  interstate 
commerce  are  subject  to  the  provisions  of  the  Act. 

The  second  clause  of  section  3  re(|uires  all  inter- 
state carriers  to  afford  reasonable  and  equal  facilities 
for  the  interchang-e  of  traffic  between  their  respective 
lines.  This  duty  is,  how^ever,  subject  to  the  limitation 
that  no  carrier  is  recjuired  to  give  the  use  of  its  tracks 
or  terminal  facilities  to  another  carrier  engaged  in  like 
l)usiness.  Common  carriers  may  be  compelled  to  ac- 
ce])t  a  car  for  transportation  wlien  such  a  car  is  offered 
at  a  place  where  the  carrier  has  established  a  itoint  of 
interchange,  provided  a  reasonable  compensation  is 
fixed  for  the  service. 

A  railroad  company  that  interclianges  carload 
freight  with  one  connecting  carrier  within  its  switching 
limits  and  transports  it  over  its  own  terminals  to  points 
of  destination  tliereon,  while  denying  the  same  service 
to  another  railroad  company  whose  tracks  connect  with 
it,  is  guilty  of  unjust  discrimination,  and  an  order  re- 
quiring it  to  desist  from  such  a  i^ractice  by  the  Com- 
mission is  valid.-"     Such  an  order  is  not  in  contra ven- 

26.    Pennsylvania  Co.  v.   United  the  carrier,  however,  does  not  rost 

States,  236  U.  S.  351,  59  L.  Ed.  616.  behind    that    .statutory    shield    but 

35  Sup.  Ct.  370:  Louisville  &  N.  R.  chooses   voluntarily   to   throw   the 

Co.  V.  United  States,  2.S8  U.  S.  1,  59  'i'erminals  open  to  many  branches 

L.   Ed.    1177.   35   Sup.   Ct.    696:    in  of  traffic,  it  to  that  extent  niake.s 

which   the   court   said:    "For.   Sec-  the  Yard  public.    Havins  made  the 

tion  3  requires  Railroad  Companies  Yard  a  facility  for  many  purposes 

to  furnish  equal  facilities  for  the  and  to  many  patrons,  such  railroad 

interchange  of  traffic  between  their  facility  is  within  he  provisions  of 

respective    lines  *  *  *     'provided  Section  3  of  the  statute  which  pro- 

that  this  should  not  be  construed  hibits  the  facility  from  being  used 

as  requiring  any  such  common  car-  in  such  manner  as  to  discriminate 

rier  to  give  the  use  of  its  tracks  or  against  patrons  and  commodities, 

terminal   facilities  to  another  car  The  carriers  cannot   say  that   the 

rier  engaged  in  like  business.'     If  Yard    is    a    facility    open    for    the 


336 


Duties  to  Interstate  SiiiprERS. 


[§  ^GG 


tion  of  the  statutory  provision  forbidding  the  Commis- 
sion from  compelling  a  carrier  to  give  the  use  of  its 
tracks  or  terminal  facilities  t-o  another  carrier  for  the 
reason  that  a  requirement  to  interchange  cars  does  not 
constitute  a  "use  of  the  track  or  terminal  facilities" 
of  the  other  carrier.  It  is  merely  a  service  of  trans- 
]-)ortation  in  receiving  and  forwarding  freight  to  be  per- 
formed on  the  payment  of  a  reasonable  compensation. 
Xo  physical  occupancy  by  running  trains  or  locomotives 
over  the  terminal  facilities  of  the  other  carrier  is  con- 
templated by  such  an  order,  but  only  the  tender  of 
freight  at  a  point  of  interchange  already  established  and 
where  the  objecting  carrier  receives  the  cars  of  other 
roads  and  hauls  them  to  points  of  delivery  over  its 
terminals."^ 


switching  of  cotton  and  wheat  and 
lumber  but  cannot  be  used  as  a 
facility  for  the  switching  of  coal. 
Whatever  may  have  been  the 
rights  of  the  carriers  in  the  first 
instance;  whatever  may  be  the 
case  if  the  Yard  was  put  back  un- 
der the  protection  of  the  proviso  to 
Section  3,  the  Appellants  cannot 
open  the  Yard  for  most  switching 
purposes  and  then  debar  a  particu- 
lar shipper  from  a  privilege  grant- 
ed the  great  mass  of  the  public.  In 
substance  that  would  be  to  dis- 
criminate not  only  against  the 
terdering  railroad,  but  also  again.~t 
the  commodity  which  is  excluded 
from  a  service  performed  for 
others." 

27.  Pennsylvania  Co.  v.  United 
States,  214  Fed.  445.  in  which 
Hunt,  J.,  said:  "The  underlying 
principle  is  that  a  common  carrier 
may  be  required  to  accept  a  car 
for  transportation  whenever  such 
a  car  is  offered  at  a  place  where 
the  common  carrier  has  established 
a  point  of  interchange,  provided 
always  a  reasonable  compensation 
is  fixed  for  the  service.    Here,  the 


place  where  the  cars  are  offere:! 
not  being  an  arbitrary  one,  the 
carrier  Pennsylvania  Company 
may  not  inquire  into  the  owner- 
ship of  the  car,  nor  into  the  routo 
over  which  it  has  been  moved  to 
reach  its  rails  merely  to  decide 
whether  or  not  it  will  transport 
the  car  so  offered.  To  hold  other- 
wise would  greatly  diminish  the 
regulating  power  of  the  Inter- 
state Commerce  Commission  to 
treat  all  carriers  as  within  the 
letter  of  the  act  to  regulate  com- 
merce with  respect  to  their  dutie.^, 
to  transport.  It  follows  that, 
where  compensation  is  offered,  a 
practice  of  hauling  the  cars  of 
several  connecting  carriers  and  ali- 
solutely  refusing  to  haul  the  cars 
of  another  carrier  is  a  discrimi- 
nation which,  in  the  interests  of 
the  public,  may  be  removed  as  prop- 
erly within  the  power  of  just  and 
reasonable  regulation  by  the  Inter- 
state Commerce  Commission.  In- 
terstate Commerce  Commission  v. 
Delaware,  L.  &  W.  R.  Co..  220  U. 
S.  235,  31  Sup.  Ct.  392,  .5.5  L.  Ed. 
448.     The  question   of  reasonable 


^  167] 


Discrimination  as  to  Katks,  etc. 


3:3; 


§  167.  Discrimination  in  Reserving  Right  to  Route 
Through  Shipments  Beyond  Carrier's  Terminal — Former 
and  Present  Rule.  Piioi-  to  the  amendments  of  IDOG 
and  ]910,  tlie  Supreme  Court,  in  reversing  an  order 
of  tlie  Commission,-"  held  that  an  initial  carrier  in  re- 
serving the  riglit  of  routing  b<'yond  its  own  terminal 
and  in  disregarding  the  routing  instructions  of  the 
shipj)er  beyond  its  own  line,  did  not  subject  the  shipper 
to  any  undue  advantage;'"'  but  the  controlling  effect  of 
this  decision  has  been  destroyed  by  the  1906  and  1910 
amendments  to  section  15  of  the  act,  which  |)rovide  that 
the  Commission  may  after  hearing  on  a  complaint  or 


compensation  is  in  no  way  in- 
volved, and  no  opinion  is  passed 
thereon." 

28.  Consolidated  Forwarding 
Co.  V.  Southern  P.  Co.,  9  I.  C.  C. 
182.  See  also  Interstate  Commerce 
Commission  v.  Southerr  Pac.  Co., 
123   Fed.   597. 

29.  Southern  Pac.  Co.  v.  Inter- 
state Commerce  Commission,  200 
U.  S.  536,  50  L.  Ed.  585,  26  Sup.  Ct. 
330.  The  court  in  this  case  was 
discussing  the  rights  of  the  in- 
itial carrier  under  the  common  law 
and  before  the  statutory  amend- 
ment changing  the  common  law 
as  applied  to  interstate  carriers. 
Said  the  Court:  "It  is  conceded 
that  the  different  railroads  form- 
ing a  continuous  line  of  road  are 
free  to  adopt  or  refuse  to  adopt 
joint  through  tariff  rates.  The 
Commerce  Act  recognizes  such 
right  and  provides  for  the  filing, 
with  the  Commission,  of  the 
through  tariff  rates,  as  agreed  up- 
on between  the  companies.  The 
whole  question  of  joint  through 
tariff  rates,  under  the  provisions 
of  the  act,  is  one  of  agreement  be- 
tween the  companies,  and  they  may, 

or  may  not,  enter  into  it,  as  they 
may  think  their  interrsts  demand. 
And  it  is  equally  plain  that  an  in- 

1    Control   C.irrior^   22 


itial  carrier  may  agree  upon  joint 
through  rates  with  one  or  several 
connecting  carriers,  who  between 
each  other  might  be  regarded  as 
competing  roads.  It  is  also  un- 
doubted that  the  common  carrier 
need  not  contract  to  carry  beyond 
its  own  line,  but  may  there  de- 
liver to  the  next  succeeding  car 
rier  and  thus  end  its  responsibil- 
ity, and  charge  its  local  rate  for 
the  transportation.  If  it  agrees  to 
transport  beyond  its  own  line,  it 
may  do  so  by  such  lines  as  it 
chooses.  Atchison,  etc.  R.  R.  Co.  v. 
Denver,  etc.  R.  R.  Co..  110  U.  S. 
667;  Louisville  &  Nashville  R.  R. 
Co.  V.  West  Coast  Naval  Stores,  etc. 
Co..  198  U.  S.  483.  This  right  has 
not  been  held  to  depend  upon 
whether  the  original  carrier  agreed 
to  be  liable  for  the  default  of  the 
connecting  carrier  after  the  goods 
are  delivered  to  such  connecting 
carrier.  As  the  carrier  is  not  bound 
to  make  a  through  contract,  it  can 
do  so  upon  such  terms  as  it  may 
agree  upon,  at  least  so  long  as  they 
are  reasonable  and  do  not  other- 
wise violate  the  law.  In  this  case 
the  initial  carrier  guarantees  the 
through  rate,  but  only  on  condition 
that  it  has  the  routing." 


oo8  DuTiEis  TO  Interstath  Shippers.  [§  167 

upon  its  own  initiative  without  (?omplaint  establish 
through  routes  and  joint  rates  under  limitations  there- 
in prescribed. 

§  168.  Discrimination  in  Refusal  of  Rail  Carriers 
to  Establish  Through  Routes  and  Joint  Rates  with 
Water  Lines.  A  navigable  river  is  a  ])ublic  highway, 
a  natural  avenue  of  commerce,  and  the  public  interest 
demands  that  its  advantages  be  utilized  to  the  fullest 
extent. ^°  The  Interstate  Commerce  Act  gives  the  Com- 
mission the  authority,  under  the  1910  and  1912  amend- 
ments, to  establish  through  routes  and  joint  rates  not 
only  between  rail  carriers  subject  to  the  Act,  but  also 
between  rail  carriers  and  water  lines  when  property 
may  be  or  is  transported  by  common  carriers  from  point 
to  point  in  the  United  States  by  rail  and  water  through 
the  Panama  Canal  or  otherwise. ^^ 

If  rail  carriers  were  permitted  to  choose  the  particu- 
lar boat  lines  with  which  they  associate,  to  establish 
through  routes  and  joint  rates,  they  would  be  able  to 
dictate  who  shall  operate  on  the  water  and  who  shall 
not,  for  a  boat  line  which  acquires  a  monoply  of  the 
through  rail  and  water  traffic  would  soon  be  able  to 
drive  its  competitors  out  of  business.  Such  a  policy 
would  destroy  the  freedom  of  competition  between  boat 
lines.'^  While  the  Commission  is  not  required  to  es- 
tablish through  routes  and  joint  rates  without  regard 
to  the  circumstances  of  each  case,  when  an  application 
is  made  therefor,  yet  any  responsible  common  carrier 
bv  water  is,  as  a  rule,  entitled  to  participate  in  inter- 

?,0.    Decatur  Nav.  Co.,  v.  Louis-  Bowling   Green    Packet   Co.,   31    I. 

ville  &  N.  R.  Co.,  31  I.  C.  C.  281.  C.  C.  301;   Tampa  Board  of  Trade 

31.    Murray,        Lighterage        &  v.  Louisville  &  N.  R.  Co.,  30  T.  C. 

Transp.  Co.  v.  Delaware  &  H.  Co..  C.    377;    In    re    advances    lumber, 

3.5  L  C.  C.  388;   In  re  application  Oregon  and  Washington  to  eastern 

Pennsylvania     Co.,     operation     of  points,   29   I.  C.   C.   609;    Truckers 

Pennsylvania-Ontario  Transp.  Co.,  Transfer  Co.  v.   Charleston  &  W. 

34   I.   C.   C.   47;    In  re  application  C.  Ry.  Co.,  27  I.  C.  C.  275;   Flour 

Southern      P.     Co.,     operation     of  City  Steamship  Co.  v.  Lehigh  Val- 

Pacific  Mail  S.  S.  Co.,  32  I.  C.  C.  ley  R.  Co.,  24  I.  C.  179. 
fi90;  Bowling  Green  Business  Men's  32.    Pacific  Nav.  Co.  v.  Soutliern 

Prnlcctive  Ass'n.  v.   EvHnsville  &  P  Co.  31  I.  C.  C.  472. 


§    1G9J  DlSClUiMlNATKKN    AS    TO    HaTES,    ETC.  339 

state  traffic.  A  refusal  to  establish  through  routes  and 
joint  rates  or  fares  with  one  steamship  line  while  main- 
taining such  relationship  witli  another  water  carrier, 
has  frequently  been  held   to  be  unduly  discriminatory 

and  a  violation  of  ])ara,grai>li  '2  of  section  3  of  the  Act.''"' 

§  169.  Exclusive  Privileges  for  Auxiliary  Facili- 
ties at  Stations  and  Terminal  Grounds  Lawful.  While 
conmion  carriers  subject  to  federal  control  must  serve 
the  traveling  and  shipping  public  on  equal  terms  and 
without  discriminations  or  preferences,  they  do  not  as- 
sume, in  performing  such  duties,  any  obligations  to  those 
who  are  neither  ])assengers  nor  shippers.  In  fulfilling  its 
duties  towards  the  public,  the  property  of  the  carrier  is 
subject  to  a  public  use,  and  the  Commission  may  re- 
quire and  control  that  use  to  prevent  discriminations 
and  preferences  towards  those  who  travel  or  ship  mer- 
chandise over  its  line. 

Subject,  therefore,  to  the  requirement  that  the  rights 
of  the  traveling  and  shipping  public  are  not  involved 
and  discriminated  against,  the  public  stations,  depots, 
grounds  and  terminal  property  of  the  carriers  are  their 
own  private  property  concerning  which  they  may  con- 
tract free  from  public  control.  Hence,  a  carrier  may 
make  exclusive  arrangements  with  third  parties  for  the 
maintenance  of  facilities  at  stations  that  add  to  the  con- 
venience of  the  traveling  and  shipping  public,  before 
the  transportation  has  commenced,  or  after  it  has  been 
completed.^*     Were   this  right  denied    the   carrier,   the 

33.  East  Shore  Development  S.  Drayage  Co.  v.  Louisville  &  N.  R. 
S.  Co.  V.  Baltimore  &  0.  R.  Co.,  32       Co.  65  Fed.  39. 

I.   C.   C.   238;    Pacific  Nav.  Co.  v.  Connecticutt.     New  York,  N.  H. 

Southern   P.   Co.   31   I.  C.   C.   472:  &  H.  R  Co.  v.  Scovill,  71  Conn.  136. 

Decatur  Nav.   Co.   v.   Louisville   &  42  L.  R.  A.   157,  71   Am.   St.  Rep. 

N.  R.  Co.  31  I.  C.  C.  281.  159,  41  Atl.  246. 

34.  United  States.  Chicago,  St.  Georgia.  Kates  v.  Atlanta  Bag- 
L.  &  N.  O.  R.  Co.  v.  Pullman  gage  &  Cab  Co.,  107  Ga.  636,  46  L. 
Southern  Car  Co.,  139  U.  S.  79.  R.  A.  431.  34  S.  E.  372;  Fluker  v. 
35  L.  Ed.  97,  11  Sup.  Ct.  490:  Ex-  Georgia  Railroad  &  Banking  Co.. 
press  Cases,  117  U.  S.  1,  29  L.  Ed.  81  Ga.  461,  2  L.  R.  A.  843,  12  Ann. 
791.  6  Sup.  Ct.  542,  628;   St.  Louis  St.  Rep.  328,  8  S.  E.  529. 


340 


DrriKS   TO    TXTKKSTATK    SHIPPERS. 


[§  1(59 


grantiug  of  a  permission,  for  instance,  to  one  person  to 
open  a  restaurant  or  a  barber  shop  would  operate  to 
permit  all  others  to  enjoy  the  same  facilities  at  the  same 
station,  a  result  palpably  absurd  and  unreasonable. 

Applying  these  principles,  the  courts  have  declared 
valid  a  contract  whereby  a  transfer  company  was  per- 
uiittfd  by  a  carrier  to  furnish  at  its  passenger  station 
all  vehicles  necessary  for  the  accommodation  of  pass- 
engers from  its  trains,  and  excluding  all  other  hackmen 
and  expressmen  from  the  station  and  depot  grounds. ^^ 


Massachusetts.  Old  Colony  R. 
Co.  V.  Tripp,  147  Mass.  35,  9  Ann. 
St.  Rep.  661,  17  N.  E.  89. 

Minnesota.  Godbout  v.  St.  Paul 
Union  Depot  Co..  79  Minn.  188,  47 
L    R.  A.  532,  81  N.  W.  835. 

New  Hampshire.  Hedding  v. 
Gallagher,  72  N.  H.  377,  64  L.  R.  A. 
811,  57  Atl.  225. 

Rhode  Island.  New  York,  N.  H. 
&  H.  R.  Co.,  V.  Bork,  23  R.  I.  218, 
49  Atl.  965. 

Virginia.  Norfolk  &  W.  R.  Co. 
V.  Old  Dominion  Baggage  Co.,  99 
Va.  Ill,  50  L.  R.  A.  722,  37  S.  B. 
784. 

35.  Donovan  v.  Pennsylvania 
Co.,  199  U.  S.  279,  50  L.  Ed.  192, 
26  Sup.  Ct.  91,  in  which  the  Court 
said:  "Applying  these  principles 
to  the  case  before  us,  it  would  seem 
to  be  clear  that  the  Pennsylvania 
Company  had  the  right — if  it  was 
not  its  legal  duty — to  erect  and 
maintain  a  passenger  station  and 
depot  buildings  in  Chicago  for  the 
accommodation  of  passengers  and 
shippers  as  well  as  for  its  own 
benefit;  and  that  it  was  its  duty  to 
manage  that  station  so  as  to  sub- 
serve, prim.arily,  the  convenience, 
comfort  and  safety  of  passengers 
and  the  wants  of  shippers.  It  was 
therefore  its  duty  to  see  to  it  that 
passengers  were  not  annoyed,  dis- 
turbed   or    obstructed    in   the   use 


either  of  its.  station  house  or  of 
the  grounds  over  which  such  pas 
sengers,  whether  arriving  or  de- 
parting, would  pass.  It  was  to 
that  end — primarily  as  we  may  as- 
sume from  the  record — that  the 
Pennsylvania  Company  made  an 
arrangement  with  a  single  com- 
pany to  supply  all  vehicles  neces- 
sary for  passengers.  We  cannot 
say  that  that  arrangement  was 
either  unnecessary,  unreasonable 
or  arbitrary;  on  the  contrary,  it 
is  easy  to  see  how,  in  a  great  city 
and  in  a  constantly  crowded  rail- 
way station,  such  an  arrangement 
might  promote  the  comfort  and 
convenience  of  passengers  arriving 
and  departing,  as  well  as  the  ef- 
ficient conduct  of  the  company's 
business.  The  record  does  not 
show  that  the  arrangement  refer- 
red to  was  inadequate  for  the  ac- 
commodation of  passengers.  But 
if  inadequate,  or  if  the  Transfer 
Company  was  allowed  to  charge 
exorbitant  prices,  it  was  for  pas- 
sengers to  complain  of  neglect  of 
duty  by  the  railroad  company  and 
for  the  constituted  authorities  to 
take  steps  to  compel  the  company 
to  perform  its  public  functions 
with  due  regard  to  the  rights  of 
passengers.  The  question  of  any 
failure  of  the  company  to  properly 
care  for  the  convenience  of  pass- 


§  Hi9J 


DlSCHlMlNATlON    AS   TO    KaTKS.    ETC. 


;;4i 


Similarly   the  Commission   upheld   an   arrangement   by 
which  a  carrier  gave  one  auction  company  the  exclusive 


engers  was  not  one  that,  in  any 
legal  aspect,  concerned  the  defend- 
ants  as  licensed  hackmen  and  cab- 
men. It  was  not  for  them  to 
vindicate  the  rights  of  passengers. 
They  only  sought  to  use  the  prop- 
erty of  the  railroad  company  to 
make  profit  in  the  prosecution  of 
their  particular  business.  A  hack- 
man,  in  no  wise  connected  with 
the  railroad  company,  cannot,  of 
right  and  against  the  objections 
of  the  company,  go  upon  its 
grounds  or  into  its  station  or  cars 
for  the  purpose  simply  of  solicit- 
ing the  custom  of  passengers;  but, 
of  course,  a  passenger  upon  ar- 
riving at  the  station,  in  whatever 
vehicle,  is  entitled  to  have  such 
facilities  for  his  entering  com- 
pany's depot  as  may  be  necessary. 
Here  the  defendants  press  the 
suggestion  that  they  are  entitled 
to  the  same  rights  as  were  ac- 
corded by  special  arrangement  to 
the  Parmolee  Transfer  Company. 
They  insist,  in  effect,  that  as  car- 
riers of  passengers  they  are  en- 
titled to  transact  their  business  at 
any  place  which,  under  the  author- 
ity of  law;  is  devoted  primarily  to 
I)ublic  uses — certainly  at  any  place 
open  to  another  carrier  engaged 
in  the  same  kind  of  business.  But 
this  contention,  when  applied  to 
the  present  case,  cannot  be  sus- 
tained. The  railroad  company 
was  not  bound  to  accord  this  par- 
ticular privilege  to  the  defend- 
ants simply  because  it  had  ac- 
corded a  like  privilege  to  the  Par- 
melee  Transfer  Company;  for  it 
had  no  contractual  relations  with 
the  defendants,  and  owned  them  as 
hackmen  no  duty  to  aid  them  in 
their  special  calling.  The  defend- 
ants  did   not   have   or   profess   to 


have  any  business  of  their  own 
with  the  company.  In  meeting 
their  obligations  to  the  public, 
whatever  the  nature  of  those  obli- 
gations, the  defendants  could  use 
any  property  owned  by  them,  but 
they  could  not,  of  right,  use  the 
property  of  others  against  their 
consent.  In  maintaining  a  high- 
way, under  the  authority  of  the 
ytate,  the  first  and  paramount  ob- 
ligation of  the  railroad  company 
was,  as  we  have  already  said,  to 
consult  the  comfort  and  conven- 
ience of  the  public  who  used  that 
highway.  To  that  end  it  could  use 
all  suitable  means  that  were  not 
forbidden  by  law.  In  its  discre- 
tion it  could  accept  the  aid  or  stip- 
ulate for  the  services  of  others. 
But,  after  providing  fully  for  the 
wants  of  passengers  and  shippers, 
it  did  not  undertake,  expressly  or 
by  implication,  to  so  use  its  prop- 
erty as  to  benefit  those  who  had 
no  business  or  connection  with 
it.  It  is  true  that  by  its  arrange- 
ment with  the  railroad  company 
the  Parmelee  Company  was  given 
an  opportunity  to  control,  to  a 
great  extent,  the  business  of  carry- 
ing passengers  from  the  Union 
Passenger  Station  to  other  rail- 
way stations  and  to  hotels  or  pri- 
vate houses  in  Chicago.  But  in  a 
real,  substantial,  legal  sense,  that 
arrangement  cannot  be  regarded  as 
a  monopoly  in  the  odious  sense  of 
that  word,  nor  does  it  Involve  an 
improper  use  by  the  railroad  com- 
pany of  its  property.  That  ar- 
rangement is  to  be  deemed,  not 
unreasonably,  a  means  devised  for 
the  convenience  of  passengers  and 
of  the  railroad  company,  and  as 
involving  such  use  by  the  company 
of  its  property  as  is  consistent  with 


342  Duties  to  Interstate  Shippers.  [§  169 

right  to  auctioneer  and  sell  fruits  and  vegetables  in  one 
of  the  carrier's  warehouses  near  its  freight  station,  it 
appearing  that  the  favored  companj^  offered  its  services 
to  all  shippers  at  a  uniform  rate  and  without  preference 
or  discrimination.^'^  Baggage  transfer  is  either  a  prior 
or  subsequent  facility  to  the  transportation  duty  of  the 
carrier  for  the  carrier's  responsibility  ends  at  the  bag- 
gage room.  The  granting,  therefore,  of  the  exclusive 
privilege  of  soliciting  on  trains  and  issuing  baggage 
checks  to  residences,  by  a  carrier,  to  one  baggage  trans- 
fer company,  does  not  subject  a  competitor  to  an  undue 
advantage  within  the  meaning  of  the  statute." 

§  170.   Distribution  of  Cars  Among  Shippers  During 
Time  of  Shortage  Must  be  Free  from  Discrimination. 

The  Act  to  Regulate  Commerce  authorizes  the  Commis- 
sion to  consider  and  determine  the  question  of  the  dis- 
tribution of  cars  in  times  of  car  shortage  as  a  means 
of  prohibiting  ilnjust  preferences  and  undue  discrim- 
inations.^^   The  statute  requires  that  cars  shall  be  fairly 

the     proper     performance     of     its  Sup.  Ct.  484;  Morrisdale  Coal  Co.  v. 

public  duties  and  its  ownership  of  Pennsylvania  R.  Co.,  230  U.  S.  304. 

the   property   in  question.     If  the  57  L.   Ed.   1494,   33   Sup.   Ct.   938; 

company  by  such  use  of  its  proper-  Mitchell  Coal  &  Coke  Co.  v.  Penn- 

ty  also  derived  pecuniary  profit  for  sylvania  R.  Co.,  230  U.  S.  247,  57 

itself,    that    was    a    matter    of    no  L.  Ed.  1472,  33  Sup.  Ct.  916;  Union 

concern  to     the     defendants     and  Pac.   R.  Co.   v.   Updike  Grain   Co.. 

gave    them    no    ground    of    com-  222   U.   S.   215,    56   L.   Ed.    171,   32 

plaint."  Sup.  Ct.  39;  Baltimore  &  O   R.  Co. 

36.  Southwestern  Produce  Dis-  v.  United  States  ex  rel.  Pitcairn 
tributers  v.  Wabash  R.  Co.,  20  I.  Coal  Co.,  215  U.  S.  481,  54  L.  Ed. 
C.  C.  458.  See  also  Andrews  Bro-  292,  30  Sup.  Ct.  164;  Interstate 
thers  v.  Pennsylvania  R.  Co.,  38  Commerce  Commission  v.  Illinois 
I.   C.  C.   165.  Cent.  R.  Co.,  215  U.  S.  452,  54  L 

37.  Cosby  v.  Richmond  Trans-  Ed.  280,  30  Sup.  Ct.  155;  Pennsyl- 
fer  Co.,  23  I.  C.  C.  72.  vania   R.    Co.   v.    Interstate   Com- 

38.  Pennsylvania  R.  Co.  V.  Clark  merce  Commission,  193  Fed.  81; 
Bros.  Coal  Min.  Co.,  238  U.  S.  456,  United  States  ex  rel.  Pitcairn  Coal 
59  L.  Ed.  1406,  35  Sup.  Ct.  896;  Co.  v.  Baltimore  &  O.  R.  Co.,  165 
Illinois  Cent.  R.  Co.  v.  Mulberry  Fed.  113;  Majestic  Coal  &  Coke  Co. 
Hill  Coal  Co.,  238  U.  S.  275,  59  L.  v.  Illinois  Cent.  R.  Co.,  162  Fed. 
Ed.  1306,  35  Sup.  Ct.  760;  Pennsyl-  810;  Logan  Coal  Co.  v.  Pennsyl- 
vania R.  Co.  v.  Puritan  Coal  Min.  vania  R.  Co.,  154  Fed.  497;  United 
Co.,  237  U.  S.  121,  59  L.  Ed.  867,  35  States  v.  Norfolk  &  W.  R.  Co.  74 


4 


DlSCHl  Ml  NATION    AS   TO    KaTES,    KTC. 


343 


alloted  to  shippers,  without  preference.'"  The  Act  does 
not,  however,  define  the  proper  method  of  distribution 
during  times  of  car  sliortage,  and  as  the  question  of  the 
proper  distribution  is  administrative  in  character,  the 
Commission  has  tlie  exclusive  jurisdiction  to  pass  upon 
the  reasonal)leness  of  the  rules  of  a  carrier  for  car 
distribution.*'' 


C.  C.  A.  404,  143  Fed.  266;  West 
Virginia  Nortliern  R.  Co.  v.  United 
States,  67  C.  C.  A.  220,  134  Fed. 
198:  United  States  ex  rel.  King- 
wood  Coal  Co.  V.  West  Virginia 
Northern  R.  Co.,  125  Fed.  252; 
Bulali  Coal  Co.  v.  Pennsylvania  R. 
(^o..  20  I.  C.  C.  52;  Jacoby  &  Co. 
V.  Pennsylvania  R.  Co.,  19  I.  C.  C. 
392;  Hillsdale  Coal  &  Coke  Co.  v. 
Pennsylvania  R.  Co.,  19  I.  C.  C. 
.^56;  Rail  &  River  Coal  Co.  v.  Balti- 
more &  0.  R.  Co.,  14  I.  C.  C.  86; 
Traer  v.  Chicago  &  A.  R.  Co.,  lo 
I.  C.  C.  451;  Royal  Coal  &  Coke  Co. 
V.  Southern  Ry.  Co..  13  I.  C.  C. 
440:  Railroad  Commission  of  Ohio 
V.  Hocking  Valley  Ry.  Co.,  12  I. 
C.  C.  39S:  Thompson  v.  Pennsyl- 
vania R.  Co.,  10  I.  C.  C.  640;  Rich- 
mond Elevator  Co.  v.  Pere  Mar- 
quette R.  Co.,  10  I.  C.  C.  629;  Glade 
Coal  Co.  v.  Baltimore  &  O.  R.  Co., 
10  I.  C.  C.  226;  Parks  v.  Cincinnati 
&  M.  V.  R.  Co.,  10  I.  C.  C.  47; 
Hawkins  v.  Wheeling  &  L.  E.  R. 
Co..  9  I.  C.  C.  212. 

39.  Pennsylvania  R.  Co.  v.  Stine- 
man  Coal  Min.  Co.,  242  U.  S.  298, 
61  L.  Ed.  316,  37  Sup.  Ct.  118;  Penn- 
sylvania R.  Co.  V.  Sonman  Shaft 
Coal  Co.,  242  U.  S.  120,  61  L.  Ed. 
188,  37  Sup.  Ct.  46;  Morrisdale 
Coal  Co.,  v.  Pennsylvania  R.  Co., 
230  U.  S.  304,  57  L.  Ed.  1494,  33 
Sup.  Ct.  398. 

40.  Illinois  Cent.  R.  Co.  v.  .Mul 
berry  Hill  Coal  Co..  238  U.  S.  275, 
59  L.  Ed.  1306.  35  Sup.  Ct.  76n; 
Pennsylvania    R.    Co.    v.    Puritan 


Coal  Min.  Co.,  237  U.  S.  121,  59  L. 
Ed.  867,  35  Sup.  Ct.  484;  Pennsyl- 
vania R.  Co.  V.  International  Coal 
Min.  Co.,  230  U.  S.  184,  57  L.  Ed. 
1446,  33  Sup.  Ct.  893,  Ann.  Cas. 
1915A  315;  Baltimore  &  O.  R.  Co. 
V.  United  States  ex  rel.  Pitcairn 
Coal  Co.,  215  U.  S.  481,  54  L.  Ed 
292,  30  Sup.  Ct.  164:  Interstate 
Commerce  Commission  v.  Illinois 
Cent.  R.  Co.,  215  U.  S.  452,  54  L. 
Ed.  280,  30  Sup.  Ct.  155;  In  Balti- 
more &  O.  R.  Co.  V.  United  States. 
supra,  the  Court  said:  "Under 
these  circumstances  it  is  apparent, 
as  we  have  said,  that  these  amend- 
ments add  to  the  cogency  of  the 
reasoning  which  led  to  the  con- 
clusion in  the  Abilene  case,  that 
the  primary  interference  of  the 
courts  with  the  administrative 
functions  of  the  commission  was 
wholly  incompatible  with  the  act 
to  regulate  commerce.  This  re- 
sult is  earlier  illustrated.  A  par- 
ticular regulation  of  a  carrier  en- 
paged  in  interstate  commerce  is 
assailed  in  the  courts  as  unjustly 
l)referential  and  discriminatory. 
Upon  the  facts  found  the  complaint 
is  declared  to  be  well  founded. 
The  administrative  powers  of  the 
commission  are  invoked  concern- 
ing a  regulation  of  like  character 
upon  a  similar  complaint.  The  com- 
mission finds,  from  the  evidence 
before  it.  that  the  regulation  is 
not  unjustly  discriminntnry. 
Which  would  prevail?  If  both, 
thm  discrimination  and  prefer«^nce 


344  Duties  to  Interstate  Shippers.  [§  170. 

In  the  distribution  of  coal  cars,  the  commercial  as 
TToll  as  the  physical  capacity  of  a  mine  should  be  taken 
into  consideration;  physical  capacity  alone  is  not  a  fair 
and  sound  basis  for  rating  coal  mines  for  coal  distribu- 
tion.*^ The  physical  capacity  of  a  mine  is  determined 
by  the  thickness  of  the  coal,  the  number  of  rooms  in  the 
mine,  the  capacity  of  the  underground  tracks,  and  the 
facilities  for  getting  the  coal  to  the  surface  and  from 
the  tipple  at  the  surface  into  the  cars.  A  fixed  value 
per  day  is  assigned  to  a  man's  labor,  taking  into  con- 
sideration the  thickness  of  the  vein  of  coal  upon  which 
the  work  is  done,  and  the  number  of  places  in  which 
a  man  can  work  is  taken  into  account,  regardless  of  the 
number  of  men  employed.  Such,  in  substance,  is  the 
method  known  as  the  physical  capacity  of  mines. *^  The 
commercial  capacity  of  a  mine  is  determined  by  taking 
the  amount  of  shipments  made  by  a  mine  during  the 
period  of  free-car  supply,  generally  from  April  1st  to 
August  1st,  during  the  preceding  two  years.  The  physi- 
cal capacity  of  a  mine,  the  commercial  capacity  for  the 
first  year  and  the  commercial  capacity  for  the  second 
year,  expressed  in  coal  tons,  are  then  added  together 
and  the  sum  is  divided  by  three.    This  is  a  method  com- 

would  result  from  the  very  prev-  record   in   the   case   of  The   Tnter- 

alence  of  the  two  methods  of  pro-  state     Commerce     Commission     v. 

cedure.     If,   on   the   contrary,   the  Illinois  Central  Railroad  Company, 

commission   was   hound   to    follow  ante.  p.  452." 

the  previous  action  of  the  courts,  41.    Logan  Coal  Co.  v.  Pennsyl- 

then  it  is  apparent  that  its  power  vania  R.  Co.,  154  Fed.  497:  .Tacoby 

to  perform  its  administrative  func-  &  qq    v.  Pennsylvania  R.  Co.,  19 

tions   would   be    curtailed,    if   not  j   c.  C.  392;  Hillsdale  Coal  &  Coke 

destroyed.     On  the  other  hand,  if  q^^^  y    Pennsylvania  R.  Co.,  19  I. 

the  action  of  the  commission  was  ^  ^  35^.  j^^jj  ^  j^.^^^  ^^^^  ^.^  ^ 

to  prevail,  then  the  function  exer-  B^itij^o.^  &  O.  R.  Co..  14  I.  C.  C. 

cised  by  the  court  would  not  have  ^g.   ^^^^^  ^    ^^^.^^^^  ^  ^    ^    ^^ 

been    judicial    in    character     since  ^.^  ^    ^    ^  Powhatan  Coal  & 

its  final  conclusion  would  be  sus^  ^  ^ 

ceptible  of  being  set  aside  by  the  ^     ^ 

action    of   a   mere   administrative  ^■'  '■■  ^-  '^^  "^• 

body.    That  these  illustrations  are  42.    Rail    &    River    Coal    Co.    v. 

not   imaginary   is   established   not  Baltimore  &  O.  R.  Co.,  14  I.  C.  C. 

only   by   this   record,   but   by   the  86. 


<§,     171  I  DlSCKlMINA  rioN    AS     lO     KaTKS,    KTC.  -U.J 

billing    the    physical    and    eonimcrcial    capacily,    wlilch 
tlio  Commission  lias  ajjproved/'' 

A  rule  of  the  Commission  icMiuiiin,^^  lliai  cars  used 
by  the  carrier  to  haul  its  own  coal  as  well  as  i)rivat(' 
and  foreio-n  railway  fuel  cars  be  taken  into  account 
against  the  distributive  share  of  a  coal  company  receiv- 
ing them  was  sustained."  The  Commission  has  not  at- 
tempted to  ado])t  exactly  the  same  system  for  distribu- 
tion of  cars  in  the  various  coal  fields  of  the  country  for 
each  coal  field  on  a  system  of  railroad  has  its  individual 
peculiarities,  and  a  plan  that  would  work  with  entire 
satisfaction  on  one  road  might  and  doubtless  would  be 
unsatisfactory  on  another  road.*'' 

In  the  distribution  of  cars  for  the  trans]X)rtation  of 
grain  during  a  shortage,  the  Commission  held  that  the 
situation  could  not  be  dealt  with  by  a  fixed,  arbitrary 
and  inelastic  regulation  but  that  there  should  be  equali- 
ty in  the  distribution  of  such  cars  as  are  available,  first, 
between  shipping  points,  and  second,  between  individuals 
at  each  of  said  points.*^ 

The  Commission  has  frequently  decided  that  all 
cars,  whether  individual  cars,  or  owned  by  the  railroad 
company,  or  assigned  by  other  railroad  companies  for 
fuel,  should  be  treated  as  an  available  car  equipment 
as  a  whole,  distril)utable  pru  rata  to  shippers  desiring 
their  use  upon  a  basis  giving  each  equal  facilities  with 
the  other.*^ 

§  171.  Preferences  and  Discriminations  in  Demur- 
rage and  Track  Storage  Charges.  While  it  is  the  duty 
of  carriers  to  transport  and  deliver  freight  at  destina- 
tions within  a  reasonable  time,  it  is  also  the  duty  of 

43     HUlsdale    Coal    &   Coke   Co.  46.    Railroad  Com'rs    of  Iowa  v. 

V    Pennsylvania  R.  Co.,  19  T.  C.  C.       Chicago.  R.  I.  &  P.  R.  Co..  29  I.  C. 

44.    Baltimore    &    0.    R.    Co.    v.  ^^-    Lo^^n  Coal  Co.  v.  Pennsyl- 


TTnited  States  ex  rel.  Pitcairn  Coal 


vania  R.  Co.,  154  Fed.  497;  United 
States  ex  rel.  Pitcairn  Coal  Co.  v. 

Co..   215  U.  S.  481.  54   L.   Ed.   292.       ^^^nj^^^,,    ^   q.    R.   Co..   154    Fed. 

30   Sup.  Ct.  164.  ^Qg.  xTnited  States  v.  Norfolk  &  W'. 

45.    In  re  Mine  Ratings,  25  I.  C.       r.  qo..  74   C.  C.  A.   404.   143   Fed. 

C.  286.  266;    West    Virginia    Northern    R. 


3-46  i)uTii:s  TO  L\ lEKsTATK  Shicpkhs.  [§  171 

the  consignees  to  receive  and  accept  the  freight  w  ithiu 
a  reasonable  time  after  delivery.  Railroad  companies 
are  able  to  serve  the  public  only  when  their  cars  are 
used  for  moving  freight,  and  they  cannot  properly 
serve  the  public  when  their  tracks  are  not  available  for 
prompt  delivery  of  freight. 

The  shipper  who,  at  a  time  for  demand  of  trans- 
portation wlneli  taxes  the  facilities  of  the  carriers,  occu- 
pies a  track  with  cars  beyond  the  free  time  granted,  in- 
flicts not  only  a  loss  upon  the  carrier  but  upon  other 
shippers  who  desire  to  use  the  carrier's  facilities.  To 
permit  one  person  to  use  the  cars  for  storage  ]3urposes 
and  deny  that  privilege  to  another,  creates  a  discrim- 
ination between  shippers.*^  Track  storage  and  demur- 
rage charges  at  congested  yards  are,  therefore,  lawful 
and  proper,^'-'  State  courts  and  Commissions  have  also 
approved  storage  charges  in  addition  to  demurrage.^" 
Track  storage  charges  are  justified  because  they  are 
necessary  in  order  to  bring  about  the  prompt  release 
of  track  space  in  the  interest  of  the  general  shipping 
public  at  points  where  business  is  very  active  and  the 
track  space  correspondingly  limited,  while  car  demur- 
rage is  assessed  for  the  purpose  of  a  proper  regulation 
of  all  the  car  equipment  of  the  carrier.^^ 

Assessment  of  track  storage  charges  in  addition  to 
demurrage  at  various  yards  in  greater  New  York  was 

Co.  V.  United   States,   67   C.   C.  A.  Murphy  Bros.  v.  New  York  Cent. 

220,   134   Fed.   198;    United   States  &  H.  River  R.  Co.,  21  I.  C.  C.  176: 

ex  rel.  Kingwood  Coal  Co.  v.  West  Turnbull    Co.    v.    Erie    R.    Co.,    17 

Virginia  Nortiiern  R.  Co.,  125  Fed.  I.  C.  C.   123;    Wilson   Produce  Co. 

252;  United  States  ex  rel.  Coffman  v.  Pennsylvania  R.  Co.,  16  I.  C.  C. 

V.  Norfolk  &  W.  Ry.  Co.,  109  Fed.  116:   New  York  Hay  Exch.  Ass'n 

831.  V.  Pennsylvania  R.  Co.,  14  I.  C.  C. 

48.  In  re  Demurrage  Charges,  25  178;   Wilson  Produce  Co.  v.  Penn- 
I.    C.    C.    314;      Kehoe    &    Co.    v.  sylvania  R.  Co.,  14  T.  C.  C.  170. 
Charleston  &  W.  C.  Ry.  Co.,  11  I.  50.    Miller      v.      Mansfield,     112 
C.  C.  166.  Mass.  260;  Norfolk  &  W.  R.  Co.  v. 

49.  Wholesale  Produce  Dealers  Adams,  90  Va.  393,  22  L.  R.  A.  530, 
Ass'n  of  Brooklyn.  New  York  v.  44  Am.  St.  Rep.  916,  18  S.  E.  673. 
I.ong  Island  R.  Co.,  26  I.  C.  C.  413;  51.  Murphy  Bros.  v.  New  York 
Murphy  Bros.  v.  New  York  Cent.  Cent.  &  H.  River  R.  Co.,  21  I.  C 
&  H.  River  R.  Co.,  21  I.  C.  C.  413;  C.  176. 


V  I'M 


DiSCIIl.M  INA'I  l(»N     AS     TO     liATKS,    ETC. 


:u7 


found  to  be  not  a  discrimination  against  that  city  siin])1y 
bocanso  similar  assessments  were  not  imposed  at  other 
points."  The  maintenance  of  higher  demurrage  charges 
at  points  in  the  State  of  California  than  were  con- 
tem]>oraneously  maintained  in  other  states,  was  not  an 
unjust  discrimination  against  California."  Upon  a 
complaint  charging  that  the  imposition  of  track  storage 
charges  upon  certain  commodities  handled  by  produce 
dealers,  subjected  such  commodities  and  the  persons 
dealing  therein  to  undue  prejudice,  it  developed  upon 
a  hearing  before  the  Commission  that  the  complainants 
used  the  equipment  of  the  carriers  for  warehousing 
purposes  to  sell  the  produce  to  retail  dealers  direct- 
ly from  the  cars,  thus  avoiding  double  drayage.     The 


52.  New  York  Hay  Exch.  Ass'n 
V  Pennsylvania  R.  Co.  14  I.  C.  C. 
178. 

.53.  In  re  Demurrage  Charges, 
25  I.  C.  C.  314,  in  which  the  Com- 
mission said:  "In  their  brief  pro- 
testants  argued  that  the  circum- 
stances and  conditions  in  CaM- 
fornia  are  not  substantially  dif- 
ferent from  those  v.hich  obtain  in 
other  sections  of  the  country 
where  all  insist  the  movement  cf 
the  products  of  the  section  is 
heavy  during  certain  portions  of 
the  year.  Their  principal  conten- 
tion, however,  is  that  the  imposi- 
tion of  a  higher  demurrage  charge 
in  California  than  in  other  states 
served  by  respondents,  or  than  in 
other  states  of  the  Union,  is  in 
violation  of  sections  1  and  3  of 
the  Act.  and  an  undue  discrim- 
ination against  California  and  the 
shippers  receivers  located  therein. 
Section  1  of  the  act  requires  that 
all  charges  for  any  service  shall 
be  just  and  reasonable.  The  rec- 
ord in  this  case,  we  think  con- 
clusively shows  that  under  the  cir- 
cumstances a  dcmurrngp  olinrge  of 


$T  per  car  per  day  on  interstate 
shipments  in  California  is  not  un- 
reasonable jyer  se.  Section  3  of  the 
Act  prohibits  undue  or  unreason- 
able preferences  or  advantage  to 
any  person,  locality,  or  particular 
kind  of  traffic.  Section  2  of  the 
Act  prohibits  charging  to  one  a 
greater  or  less  compensation  than 
is  charged  to  another  for  a  like 
and  contemporaneous  service  un- 
der substantially  smiilar  circum- 
stances and  conditions.  If  it  can 
be  said  that  Section  3  prohibits  a 
higher  demurrage  charge  in  Cali- 
fornia than  is  assessed  in  New 
York,  would  it  not  necessarily  fol- 
low that  it  also  prohibits  charging 
a  higher  rate  for  transporting  a 
given  quantity  of  freight  a  given 
distance  in  California  than  is 
charged  for  a  like  service  in  New 
York?  Clearly  the  circumstances 
and  conditions  connected  with  the 
service  rendered  must  be  taken 
Into  consideration  in  determining 
what  is  undue  or  unreasonable 
preference  or  charge  under  Sec- 
tion 3  of  the  Act." 


348 


Duties  to  Interstate  Shippers. 


[§  ni 


Commission    held    that    under    the    circumstances,    the 
charges  were  justified.'^* 

§  172.  Unreasonable  Compensation  to  Shippers  for 
Services  in  Connection  with  Transportation.  Tlie  Act 
provides  that  if  any  owner  of  property  transported 
renders  any  service  connected  with  such  transportation, 
or  furnishes  any  instrumentality  used  therein,  the  car- 
rier ma}^  compensate  the  shipper  for  the  service  render- 
ed or  the  instrumentality  furnished  in  connection  with 
his  own  shipments.  If  the  amount  is  reasonable,  it  is 
not  a  prohibited  rebate  or  discrimination  even  if  the 
carrier  does  not  allow  other  shippers  to  render  and 
furnish  similar  services  and  instrumentalities  and  com- 
pensate them  therefore. ^^  But  when  a  carrier  employs 
a  shipper  to  perform  a  service  which  is  a  part  of  the 
transportation,  the  shipper  obtains  an  unreasonable 
preference  and  advantage  in  violation  of  the  statute  if 
the  compensation  therefor  is  excessive.^'' 


54.  Wholesale  Produce  Dealers 
Ass'n  of  Brooklyn,  New  York  v. 
Long  Island  R.  Co.,  26  I.  C.  C. 
413. 

5.5.  United  States  v.  Baltimore 
&  O.  R.  Co.,  231  U.  S.  274,  58  L.  Ed. 
218,  34  Sup.  Ct.  75  Knapp  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co., 
;J3  N.  D.  291,  156  N.  W.  1019. 

56.  Mitchell  Coal  &  Coke  Co.  v. 
Pennsylvania  R.  Co.,  38  I.  C.  C. 
40,  in  which  the  Commission  said: 
"The  service  over  private  tracks 
from  the  lines  and  coke  ovens  of 
shippers  to  the  rails  of  the  carrier 
is  not  now  nor  was  it  during  the 
period  of  the  action  either  com- 
pelled or  prohibited  by  the  statute 
or  by  the  common  law.  To  furnish 
it  or  to  withhold  it  is  within  the 
discretion  of  the  defendant;  but 
whatever  course  is  pursued,  the 
statutory  inhibition  of  unjust  dis- 
crimination and  unreasonable 
preference   or   advantage  must  be 


observed.  In  the  exercise  of  this 
right  the  defendant  elected  to 
furnish  the  service  and  therefore 
its  admitted  undertaking,  so  found 
by  the  Supreme  Court  of  the 
United  States,  was  found  to  trans- 
port the  product  of  the  shippers 
from  their  lines  and  coke  ovens  at 
the  rate  published  in  its  tariffs. 
If  all  the  shippers  of  coal  and 
coke  were  furnished  the  same 
character  of  service  and  also  were 
required  to  pay  the  published 
tariff  rates  therefor,  the  under- 
taking in  itself  would  not  be  dis- 
criminatory, nor  would  it  result 
in  unreasonable  preferences  or  ad- 
vantage. In  order,  however,  to 
overcome  physical  disabilities, 
such  as  unusual  grades,  light  rail, 
and  abnormal  curvatures  the  de- 
fendant employed  some  of  the 
shippers  to  perform  a  part  of  its 
undertaking  by  hauling  their  prod- 
ucts   over   their    lines     and     coke 


§    174J  DlSCHIMINATlON    AS   TO    KaTKS,    ETC.  349 

§  173.  Abnormal  Division  of  Joint  Rates  to  Car- 
rier Unlawful.  A  railroad  <'(»iii|)an\-  as  a  shipper 
is  entitled  to  the  same  rights  and  is  subject  to  the  same 
liabilities  as  a  commercial  shipper  even  when  the  ship- 
ment moves  in  part  over  tlie  rails  of  such  railroad  com- 
pany. It  may,  therefore,  i)articipate  in  the  division  of 
a  joint  through  rate  when  sliipping  its  own  property; 
l)ut  it  is  unlawful  for  a  carrier  to  make  sp<^cial  and  dis- 
criminatory divisions  of  joint  rates  as  between  an  orig- 
inal or  participating  carrier  and  the  purchasing  carrier. 

Tlio  fundamental  purpose  of  the  statute  was  to 
stamp  out  all  discriminations  and  concessions  and  to 
place  all  shippers  on  an  equality.  If,  therefore,  one  car- 
rier in  the  transportation  of  its  own  fuel  has  paid  a 
special  and  abnormal  division  of  a  joint  rate,  such  a 
metliod  is  the  means  of  indirectly  reducing  transporta- 
tion charges  and  producing  undue  discriminations. 
If  the  division  of  such  a  joint  rate  is  such  as  to  amount 
to  a  rebate  or  discrimination  in  favor  of  one  carrier  as 
a  shipper,  the  Commission  has  the  power  to  inquire  in- 
to the  unreasonableness  of  the  division  and  to  reduce 
the  amount  to  tlie  carrier-shipper.^' 

§  174.  Undue  Discriminations  in  Divisions  of  Joint 
Through  Rates  to  Tap  Lines  or  Logging  Roads.  Oidi- 
narily  the  law  has  no  concern  with  the  di^•isio^  of  joint 

ovens  to  its  rails,  paying  to  them  who  received   no  such   allowances 

for    this    service    varying    allow-  because  the  defendant  carrier,  in- 

ances.     Even  this  practice  by  itself  stead    of   this,    either   did    or    was 

would  not  be  discriminatory,  nor  ready  and  willing  to  perform  the 

would    it    result    in    unreasonable  service.'' 

preferences   or   advantages   if  the  57.   Tap   Line   Cases,   234   U.   S. 

allowances    to    all    shippers    who  1,  58  L.  Ed.  1185,  34  Sup.  Ct.  741; 

perform  the  service  were  no  more  Interstate  Commerce   Commission 

than  sufficient  to  compensate  them  v.  Baltimore  &  O.  R.  Co.,  225  U.  S. 

for  its  cost,  including  a  reasonable  32fi,   56    L.    Ed.   1107,    32    Sup.   Ct. 

profit   of   the   same   percentage   to  742,   Ann.   Cas.    1914A    504;    In   re 

all  shippers.     If,  however,  the  al-  Rates  on  Railroad  Coal  and  Other 

lowances      included      appreciable  Fuel,  3fi  I.  C.  C.  1;  Manufacturers' 

profits  of  unequal  percentages,  the  Ry.  Co.  v.  St.  Louis.  I.  M.  &  S.  Ry. 

shippers  receiving  the  greater  per-  Co.,  28  I.  C.  C.  93;  In  re  Company 

centago   of  profit   were   given    un-  ^laterial.    22    I.   C.   C.    439;    In    re 

reasonable     preferences     and     rd-  Division   of  Joint  Rates,   22    I.   C. 

vantages  over  competing  shippers  C.  51. 


350  OuTiKs  TO  l.\  J  i: H.STAT E  Shippees.  [§  174 

rates  which  carriers  make  by  agreement.  They  have  the 
right  to  make  such  divisions  of  their  joint  rates  as  they 
see  fit,  and  to  raise  or  lower  their  divisions  at  will.  But 
this  principle  has  decided  limitations.  If  the  division 
is  such  that  a  rebate  or  a  discrimination  of  an  undue 
advantage  to  a  sliipper  results,  the  Commission  has 
jurisdiction  over  the  divisions  and  may  reduce  the 
amount  which  one  carrier  receives. ^^  In  the  Tap  Line 
Cases,"  the  Supreme  Court,  in  overruling  an  order  of 
the  Commission,^"  held  that  certain  logging  roads  in 
Louisiana,  Arkansas  and  Texas  were  not  merely  facili- 
ties of  lumber  mills  but  were  common  carriers  within 
the  meaning  of  the  Act,  and  as  such  were  entitled  to 
participate  in  joint  rates  with  other  common  carriers, 
although  most  of  the  property  transported  consisted  of 
lumber  of  the  mill  owners.  The  court,  however,  dis- 
tinctly recognized  and  ruled  that  the  divisions  of  such 
joint  rates  between  the  owners  of  the  tap  lines  and  the 
carriers  were  under  the  control  of  the  Commission  and 
that  an  unjust  discrimination  therein  might  be  forbidden. 
Following  this  decision,  the  Commission  investi- 
gated the  allowances  made  to  certain  tap  lines  and  log- 
ging roads  and  the  divisions  of  the  joint  rates  were  af- 
fected and  a  proper  amount  to  the  tap  line  owners  was 
determined  upon.  The  Commission  found  tliat  the  di- 
vision of  the  joint  rates  allowed  to  the  tap  lines  amount- 
ed to  rebates  or  discriminations  in  favor  of  the  owners 
of  the  tap  lines  who  were  also  sliip|iers  because  of  the 
dispro))orti(mate  amount  allowed  in  view  of  the  services 
rendered." 

58.  Tap  Line  Case.  31  I.  C.  C.  Fathauer  Co.  v.  St.  Louis,  I.  M.  & 
490;  In  re  Galveston  Wharf  S.  Ry.  Co.,  18  I.  C.  C.  517;  Star 
Charges.  23  I.  C.  C.  535.  Grain  &  Lumber  Co.,  v.  Atchinaon, 

59.  United  States  v.  Butler  T.  &  S.  F.  Ry.  Co..  17  I.  C.  C.  33S, 
County  R.  Co.,  234  U.  S.  29,  58  L.  14  L  C.  C.  364;  Central  Yellow 
Ed.  1196,  34  Sup.  Ct.  748;  Tap  Pine  Ass'n  v.  Illinois  Cent.  R.  Co., 
Line  Case,  234  U.  S.  1,  58  L.  Ed.  10  1.  C.  C.  505;  Central  Yellow 
1185,  34  Sup.  Ct.  741.  Pine  Ass'n    v.  Vicksburg.  S.  &  P. 

60.  Tap  Line  Case,  23   I.  C.  C.  R.  Co.,  10  I.  C.  C.  193. 

277;   Kaul  Lumber  Co.  v.  Central  61.    Tap  Line  Case,  31  I.   C  C. 

of  Georgia  Ry.  Co.,  20  I.  C.  C.  450;       490. 


§  17:> 


I  )|SC|H.M  I  NA  rioN     AS    'ID     liATKS,    KTC 


:;:)! 


§  175.  Grant  of  Wharfage  Privileges  to  One 
Shipper  Denied  to  Others  Unlawful.  Conniioii  cairiery 
under  federal  control  are  required  to  aeoord  to  all  ship- 
pers who  are  entitled  to  like  iroatmont,  e(|ual  ri<<hts  both 
in  the  receiving  of  supplies  and  the  shipment  of  their 
products,  and  a  carrier  who,  under  any  pretext  what- 
soever, grants  to  one  shipjior  an  advantage  which  ho 
denies  to  another,  violates  the  spirit  and  thwarts  the 
l)urpose  of  the  statute. " 

A  contract  or  lease,  therefore,  by  whicli  a  terminal 
company  gave  to  an  exporter  of  cotton  seed  |)roducts 
a  portion  of  its  wharf  witliout  the  payment  of  wharf- 
age storage  charges  while  denying  the  same  privileges 
to  other  exporters,  constituted  an  undue  preference  with- 
in the  meaning  of  the  law,  although  the  exporter  paid 
a  yearly  rental  for  the  use  of  the  pier  and  the  improve- 
ments thereon." 


62.  Castle  v.  Baltimore  &  0.  U. 
Co.,  8  I.  C.  C.  333. 

63.  Southern  Pac.  Terminal  Co. 
V.  Interstate  Commerce  Commis- 
sion, 219  U.  S.  498,  55  L.  Ed.  310, 
31  Sup.  Ct.  279.  "It  is  next  con- 
tended," said  Mr.  Justice  IMcKenna, 
"that  the  lease  to  Young  under  the 
tacts  proven  does  not  constitute  an 
unlawful  or  undue  preference  un- 
der the  Interstate  Commerce  Act. 
To  a  certain  extent  we  have  con- 
sidered this  contention.  An  ab- 
solute advantage  to  Young  cannot 
be  denied.  A  facility  that  has  en- 
abled him  to  acquire  practically  all 
the  export  of  cotton  seed  products 
must  have  something  in  it  of  ad- 
vantage which  other  shippers  do 
not  receive,  and  it  would  seem  to 
proclaim  a  power  working  for  his 
benefit  which  is  not  working  for 
others.  And  yet  it  is  urged  that 
there  is  a  contrariety  of  opinion 
about  it  among  cotton  seed  cake 
producers  and  as  to  whether  Young 

is    able    to    dominate    the    Texas 
market  and  to  command  the  for- 


eign trade.  The  facts,  we  think, 
put  the  matter  beyond  conjecture 
or  opinion  and  demonstrate  the 
potency  of  his  situation.  That  it 
is  a  preference,  however,  is  denied; 
since  it  is  urged  that  by  the  agreed 
statement  of  facts  all  cotton  seed 
cake  producers  'agree  that  if  there 
was  a  general  establishment  of 
plants  in  Galveston,  so  that  a  mo- 
nopoly could  not  be  acquired'  by 
Young,  'it  would  be  of  great  bene- 
fit to  the  cotton  seed  industry.' 
Rut  it  is  also  agreed  that  neither 
the  Galveston  Wharf  Company  nor 
the  Terminal  Company  h-^s  soqc^ 
enough  to  afford  facilities  to  'all 
exporters  doing  business  at  Galves- 
ton' such  as  Young.  And  the  Com- 
mission found  that  as  a  practical 
matter  other  shippers  could  not  be 
given  the  same  facilities  on  the 
same  conditions  as  those  granted 
to  him,  nor  could  such  facilities  be 
secured  on  the  bay  front.  It  was 
further  found  that  the  Terminal 
Company  had  indicated  that  it  is 
not  willing  to  accord  shippers  gen- 


352 


Duties  to  Interstate  Shippers. 


[§  175 


Similarly,  the  practice  of  a  railroad  company  at  its 
wharves  in  refusing  to  deliver  at  ship-side  to  vessels 
other  than  those  belonging  to  or  consigned  to  a  transit 
company,  a  corporation  owned  by  and  the  agent  of  the 
railroad  company,  or  to  receive  at  ship-side  from  such 
vessels  property  transported  or  to  be  transported  in  com- 
merce subject  to  the  Interstate  Commerce  Act,  while 
delivering  like  property  at  ship-side  to,  and  receiving 
like  property  at  ship-side  from  vessels  consigned  to  or 
belonging  to  the  said  transit  company,  was  held  to  be 
unduly  discriminatory  and  unlawful."* 

In  another  case  it  was  held  by  the  Commission  that 
a  carrier  was  guilty  of  undue  preference  when  it  denied 
the  use  of  its  wharf  and  docks  to  some  shippers  while 
permitting  such  use  to  favored  steamship  lines,  for 
when  a  railroad  has  a  wharf  at  which  its  tariffs  offer 
delivery,  and  at  which  part  of  the  shipping  public  is 
served,  but  to  which  it  does  not  give  all  access,  it  must 
make  delivery  at  the  same  rate  at  some  other  wharf 
in  the  same  terminal."^ 


erally  such  facilities,  and  that  the 
situation  of  its  docks  with  respect 
to  space  is  sucli  that  it  cannot  be 
so  even  if  it  were  willing.  It  may 
be  contended  that  the  patrons  of  a 
railroad  are  obliged  to  seek  or 
compete  for  extraordinary  facili- 
ties in  its  terminals.  But,  be  that 
as  it  may,  all  shippers  must  be 
treated  alike." 

64.  In  re  Wharfage  Facilities  at 
Pensacola,  Florida,  27  I.  C.  C.  252. 

65.  Mobile  Chamber  of  Com- 
merce V.  Mobile  &  0.  R.  Co.,  23  I. 
C.  C.  417.  "We  do  not  regard  the 
Mobile  docks,"  said  Commissioner 
Lane,  "of  the  defendants  in  any 
other  light  than  as  public  termi- 
nals. These  carriers  make  their 
rates  to  apply  from  point  of  origin 
to  the  ships  side  at  these  docks. 
The  necessary  implication  arising 
from  these  facts  is  that  access 
must  be  given  to  these  wharves  by 


whatever  ship  the  shipper  chooses 
to  have  his  freight  carried  from 
the  wharf  so  long  as  such  access 
may  be  safely  and  properly  given. 
A  railroad  may  not  have  a  prefer- 
red line  of  steamships  to  the  ex- 
clusion of  other  ships.  Without 
doubt  it  may  prefer  one  line  and 
have  more  intimate  relationship 
with  such  line  than  with  others, 
but  its  duty  as  a  common  carrier 
by  rail  cannot  be  neglected  because 
of  such  arrangements.  It  may  set 
aside  one  or  more  docks  for  the 
use  of  such  allied  lines  so  long  as 
such  practice  does  not  conflict  with 
its  duty  to  give  delivery  at  these 
docks  to  whomever  may  apply  for 
the  freight  properly  deliverable  to 
that  point.  If  it  chooses  to  give  up 
its  entire  dock  facilities  to  some 
particular  line,  it  may  do  so,  but 
it  must  make  delivery  upon  equal 
terms  to  other  ships  at  that  port, 


§  17(i| 


Discrimination  as  to  Ratks,  ktc. 


353 


§  176.  Unlawful  Discriminations  and  Preferences 
in  Transit  Privileges.  A  transit  j^rivilc^e  is  one  where 
the  carrier  transports  a  commodity  to  a  milling  or 
inanufaftiiring  ])oint  where  a  commercial  process  is 
pertonned  and  the  resulting  product  is  moved  on  to 
other  destinations  at  the  through  rate.""  Prior  to  the 
amendment  of  190(),  the  extent  of  the  authoi'ity  of  the 
Interstate  Commerce  Commission  in  regulating  transit 


if  it  has  undertaken  to  deliver  the 
freight  it  transports  at  the  ships 
side.  As  recently  stated  in  Baker- 
Whiteley  Coal  Co.  v.  Baltimore  & 
0.  R.  R.  Co.,  188  Fed.  412  'That  a 
railroad  company  has  the  right  to 
keep  a  pier  for  its  own  use  and 
for  the  use  of  such  transportation 
lines  as  have  contracts  with  it  for 
transshipment,  cannot  be  denied, 
provided  it  offers  to  the  public 
reasonable  facilities  elsewhere  at 
equal  rates  for  the  receipt  of  coal 
shipped  from  its  road  to  Baltimore 
to  be  there  transshiped.'  In  other 
words,  a  railroad  has  certain  pri- 
mary duties  which  it  must  dis- 
charge to  the  shipping  public  be- 
fore it  is  free  to  exclude  this  pub- 
lic from  any  of  the  facilities  which 
it  uses  or  controls  in  the  perfor- 
mance of  its  public  duties.  It  need 
not  make  a  rate  to  ship-side  unless 
its  lines  extend  there;  but,  mak- 
ing such  rate,  and  having  such  fa- 
cilities, it  must  give  the  shipper 
access  to  the  terminal  to  receive 
the  traffic;  and  it  may  no  more  dis- 
criminate as  between  shippers  at 
a  wharf  than  it  may  lawfully  dis- 
criminate as  between  trucks  at  a 
freight  shed." 

06.  United  States  v.  Louisville 
&  N.  R.  Co..  236  U.  S.  318.  59  L. 
Ed.  598,  35  Sup.  Ct.  363;  United 
States  V.  Louisville  &  N.  R.  Co., 
235  U.  S.  314,  59  L.  Ed.  245,  35  Sup. 
Ct.  lU:  Lewis.  Leonhardt  &  Co. 
v.   Southern   R.   Co.,   133   C.   C.   A. 


237,  217  Fed.  321;  Nichols  &  Cox 
Lumber  Co.  v.  United  States,  129 
C.  C.  A.  124,  212  Fed.  588;  Cxrand 
Rapids  &  I.  R.  Co.  v.  United  States. 
129  C.  C.  A.  113,  212  Fed.  577;  In 
re  Advances  Grain,  Lawrenceburg, 
Ind.,  35  I.  C.  C.  27;  Spiegle  &  Co. 
V.  Southern  Ry.  Co.,  34  I.  C.  C. 
448;  In  re  Advances  Transit  Rates 
on  Logs  and  Staves  at  Alexandria, 
La.  34  I.  C.  C.  169;  Mixed  Car 
Dealers'  Ass'n  v.  Delaware,  L.  & 
W.  R.  Co.,  33  I.  C.  C.  133;  Middle- 
town  Car  Co.  v.  Pennsylvania  R. 
Co.,  32  I.  C.  C.  185;  National  Cas- 
ket Co.  V.  Southern  Ry.  Co..  31  I. 
C.  C.  678;  Empire  Coke  Co.  v.  Buf- 
falo &  S.  R.  Co.,  31  I.  C.  C.  573: 
Stock  &  Sons  V.  Lake  Shore  &  M. 
S.  Ry.  Co.,  31  I.  C.  C.  150;  Newark 
Grain  Co.  v.  Southern  P.  Co.,  30 
I  C.  C.  431;  Gadow  v.  Chicago,  St. 
P..  M.  &  0.  Ry.  Co.,  29  I.  C.  C.  457; 
Wichita  Board  of  Trade  v.  Abilene 
&  S.  Ry.  Co.,  29  I.  C.  C.  376;  In  re 
Advances  Fabrication-in-transit 
Charges,  29  I.  C.  C.  70;  Clinton 
Sugar  Refining  Co.  v.  Chicago  & 
N.  W.  Ry.  Co.,  28  I.  C.  C.  364;  Mem- 
phis Freight  Bureau  v.  Illinois 
Cent.  R.  Co.,  27  I.  C.  C.  1;  Spiegle 
&  Co.  v.  Southern  .R.  Co..  25  I. 
C  C.  71:  Transit  Case,  24  I.  C. 
C,  340,  26  I.  C.  C.  204,  25  I.  C.  C. 
130;  In  re  Wool.  Hide  &  Pelt 
Rates,  23  I.  C.  C.  151;  In  re  Sub- 
stitution of  Tonnage,  18  I.  C.  C. 
280. 


1    Coutrol   L'arrlfis   23 


354  Dr'iiKs  lo  1  NiKHsi'A'ii:  Siiitpkus.  |§  ITT) 

privileges  was  doubtful,  but  under  the  Hepburn  amend- 
ment of  that  date,  the  reasonableness  or  discriminatory 
effect  of  transit  privileges,  and  all  rules  and  regulations 
in  connection  therewith,  are  now  subject  to  tlio  juris- 
diction of  the  Connnission.  Tn  the  exercise  of  its  au- 
thority, rules  and  regulations  susceptible  of  discrimina- 
tory or  other  unlawful  a]>plication,  may  be  condemned 
by  the  Commission.''' 

The  transit  ])rivilege  is  ai)plied  to  the  movement  of 
many  commodities.  Generally,  in  its  application,  the 
raw^  material  pays  the  local  rate  into  the  point  of  manu- 
facture. When  the  manufactured  product  afterwards 
goes  forward,  it  is  transported  upon  a  rate  which  would 
be  applied  to  that  product  had  it  originated  in  its  manu- 
factured state  at  the  point  where  the  raw  material  was 
received  for  transportation."*  The  essential  object  of 
transit  privileges  is  to  enable  shippers  to  employ  a 
method  of  transit  which,  but  for  the  privilege,  would  sub- 
ject material  to  local  rates  instead  of  entitling  it  to  an 
ultimate  through  rate.  The  through  rate  is  applied 
later  upon  the  theory  and  the  condition  that  stoppage 
at  the  transit  point  was  for  some  legitimate  treatment 
of  material,  and  that  the  continuation  of  the  transit 
desired,  is  of  the  same  material,  its  product  or  equiva- 
lent, to  a  through  rate  destination.*^^ 

Under  a  transit  privilege  a  shipper  may,  there- 
fore, receive  the  benefit  of  a  through  rate  from  the  point 
of  origin  of  the  commodity  to  the  final  point  of  desti- 
nation instead  of  being  required  to  pay  the  rate  to  the 
milling  or  merchandizing  i)oint,  i)lus  the  rate  from  such 
point,  the  sum  of  such  rates  being  generally  in  excess 
of  the  through  rate  from  the  first  point  of  origin  to 
the  point  of  final  destination.^"    "When  rates  are  changed 

07.      Transit    Case,    26    I.    C.    C.       212  Fed.  588;     Grand  Rapids  &  I. 
204,   25    I.   C.C.    130,    24    I.   C.   C       R.  Co.  v.  United  States,  129  C.  C. 

340.  A.  113,  212  Fed.  577;    Lewis,  Leon- 

OS.     Central  Yellow  Pine  Ass'n 
V.   Vicksburg.   S.   &  P.   R.   Co.,   10 
ICC    193 
'  G9.     Nichols  &  Cox  Lumber  Co.  70-     ^  re  Milling,  in  Transit,  17 

V.  United  States,  129  C.  C.  A.  124,      L  C.  C.  113. 


hardt    &   Co.    v.    Southern    R.    Co., 
133  C.  C.  A.  237,  217  Fed.  321. 


§     17()|  1  )|S(|;I.M  INA  riuX    AS    TO    rjAIKS.    KTC  '\7)7) 

wlijle  tlic  commodity  it?  in  a  slate  of  suspended  trans- 
portation at  tlie  transit  point,  tlie  rate  in  effect  on  the 
date  of  the  lirst  movement  of  tlie  shipment  from  the 
point  of  origin  should  be  applied/'  If  a  transit  privilege 
is  applied  without  discrimination,  it  results  in  the 
diffusion  of  business  by  giving  rival  communities  the 
relative  advantage  to  which  they  are  entitled  and  which 
can  legally  be  given  them  in  no  other  way/^' 

It  is  clearly  discriminatory  for  a  carrier  to  single 
out  one  product  of  grain  for  example,  and  withhold  a 
transit  privilege  from  it  while  granting  the  same  privi- 
lege at  the  same  place  or  at  some  other  competitive 
point,  to  other  products  of  grain  of  substantially  simi- 
lar character,  value  and  packing,  and  which  is  trans- 
ported under  substantially  similar  conditions.''  But 
a  carrier  may  withhold  a  transit  privilege  from  a  pro- 
duct that  is  essentially  ditferent  from  the  raw  material 
and  from  other  i)roducts  of  the  same  raw  material  which 
are  accorded  transit  rates.  For  example,  the  Commis- 
sion held  that  cornstarch  did  not  constitute  a  like  kind 
of  traffic  with  cornmeal  and  cornflour,  and  a  denial  of 
the  privilege  of  milling  corn  into  starch  under  a  transit 
rate  did  not  constitute  an  unjust  discrimination  even 
when  the  right  was  given  to  other  industries  to  mill 
corn  into  other  uncooked  corn  products.'* 

Su1)stitutiou  at  the  transit  i:>oint  of  one  commodity 
f'oi-  ;ni()tli(4'  and  the  transportation  of  the  substituted 
connuodity  at  the  transit  rate  is  illegal."  Thus,  com- 
mon carriers  were  found  guilty  of  giving  rebates  through 
the  device  of  unlawful  substituting  lumber  at  the  tran- 
sit point. ^"^  The  rules  and  regulations  of  the  Southern 
Railroad  Company  applicable  to  transit  on  lumber  to 
points  on  its  system  were  found  not  be  be  unduly  dis- 

71.  In  ic  .Milling  in  Transit,  17  75.  In  re  Substitution  of  Ton- 
I    C.  C.  113.                                                 nage,  18  I.  C.  C.  280. 

72.  In  re  Wool.  Hide  &  Pelt  76.  Nichols  &  Cox  Lumber  Co.  v. 
Rates,  23  I.  C.  C.  151.                                United    States,    129    C.    C.    A.    124. 

7:^.  Douglas  &  Co.  V.  Chicago.  R.  212  Fed.  588;  Grand  Rapids  &  T. 
I.  &  P.  Ry.  Co..  21  I.  C.  C.  541.  21  R.  Co.  v.  United  States,  129  C.  C. 
I    C.  C.  97.  16  I.  C.  C.  232.  A.  li:?.  212  Fed.  577. 

74.    Douglas    &    Co.    v.    Illinois 
Cent.  R.  Co.,  31  I.  C.  C.  587. 


356  Duties  to  Interstate  Shippers.  [§  176 

criminatory  but  a  refusal  to  apply  the  transit  rate  on 
small  shipments  of  lumber  of  a  particular  kind  was 
held  to  be  unreasonable." 

§  177.  Compensation  for  Transit  Privileges  Not 
Limited  to  Actual  Cost.  The  stopping  of  a  commodity 
in  transit  for  the  purpose  of  treatment  or  reconsign- 
ment  is  one  of  some  benefit  to  a  shipper  and  involves 
some  service  by  and  expense  to  the  carrier.  In  an 
early  case  the  Commission  held  that  carriers  violated 
the  statute  prohibiting  undue  preference  by  charging 
for  the  privilege  more  than  what  it  actually  cost  them 
to  perform  the  service  incident  thereto.^®  But  on  writ 
of  error  to  the  Court  of  Appeals,  the  Supreme  Court 
held  that  the  carriers  were  entitled  to  compensation 
in  addition  to  the  actual  cost.^®  ''A  carrier,"  said 
the  Court  "may  be  under  no  obligations  to  furnish 
sleeping  or  other  accommodations  to  its  passengers, 
but  if  it  does  so  it  is  not  limited  in  its  charges  to 
the  mere  cost,  but  may  rightfully  make  a  reason- 
able profit  out  of  that  which  it  does  furnish.  Es- 
pecially is  this  true  when,  as  here,  the  privilege  is 
in  no  sense  a  part  of  the  transportation,  but  outside 
thereof.  Whether  the  conclusion  of  the  commission  that 
the  carrier  is  under  no  obligations  to  permit  the  inter- 
ruption of  the  transit  is  right,  and  whether  it  is  or  is 
not  under  such  obligation,  it  is  entitled  to  receive  some 
compensation  beyond  the  mere  cost  for  that  which  it 
does.  We  have  been  particular  to  copy  the  exact  lan- 
guage used  by  the  commission,  for  in  another  case  be- 
tween the  same  plaintiff  and  other  railroad  companies, 
involving  the  charges  in  a  case  of  reconsignment  of  hay, 
decided  on  December  20  of  the  same  year  (St.  Louis 
Hay  &  Grain  Company  v.  The  Illinois  Central  Railroad 
Company  et  al,  11  I.  C  C.  486),  the  commission  made 
an  order  dismissing  the  complaint.     It  is  true  that  the 

77.  National  Casket  Co.  v.  South-  St.  Louis  Hay  &  Grain  Co.,  82  C. 
ern  Ry.  Co.,  31  I.  C.  C.  678.  C.  A.  614,  153  Fed.  728. 

78.  St.  Louis  Hay  &  Grain  Co.  79.  Southern  R.  Co.  v.  St.  Louis 
V.  Mobile  &  0.  R.  Co.,  11  L  C.  C.  Hay  &  Grain  Co.,  214  U.  S.  297,  53 
90;     See  also   Southern   R.   Co.   v.       L.  Ed.  1004,  29  Sup.  Ct.  678. 


§    180J  I)rS(  RIMINATIOX    AS    TO    IvATKS,    KTC  357 

faets  aro  not  i)rocisoly  like  tliose  in  tliis  ca«o,  but  at 
tlie  .same  tiino  the  difference  in  the  conclusions  of  tlie 
commission  is  such  as  seems  to  suggest  that  perhai)s  on 
further  examination  tlie  connnission  had  come  to  a  dif- 
ferent eonelnsion." 

§  178.  Extension  of  Tranisit  Privilege  Over  Twelve 
Months  Unreasonable — Exceptions  Permitted.  A  iian- 
sit  privilege  extending  through  a  period  of  over  twelve 
months  is  prima  facie  unreasonable,  but  as  applied  to 
the  creosoting  of  lumber,  a  period  of  eighteen  months 
is  not  unreasonably  long,  ])rovided  the  full  local  rates 
on  the  inbound  material  are  required  to  be  paid.**^ 
Tariff"  rules  of  carriers  limiting  to  eighteen  months 
the  time  within  which  cross  ties,  creosoted  in  transit, 
might  be  reshipped  at  the  through  rates  from  points  of 
origin  to  final  destination,  the  Commission  hold,  were 
not  discriminatory  or  unreasonable.''' 

§  179,  Carriers  May  Allow  Compensation  to  One 
Shipper  for  Transportation  Services  and  Deny  Same 
Privilege  to  Another.  When  a  carrier  employ.s  several 
shippers  to  perform  a  part  of  its  undertaking  and  pays 
them  varying  allowances,  this  practice  is  not  discrimina- 
tory when  the  allowances  to  all  of  them  are  no  more 
than  sufficient  to  compensate  for  the  cost,  including  a 
reasonable  profit  of  the  same  percentage  to  all  sliipj)ers. 
If,  however,  the  allowances  include  appreciable  ju'ofits 
of  unequal  percentage,  the  shippers  receiving  the  great- 
er percentage  of  profits  are  given  unreasonable  advan- 
tages and  preferences  over  com])eting  shi])])ers/- 

§  180.  Contracts  Requiring  Expedited  Services  Not 
Open  to  All  Shippers  Invalid.  The  broad  puri)ose  of 
Congress  in  the  enactment  of  sections  2  and  3  was  to 
compel  the  assessment  of  reasonable  rates  and  their 
uniform  application.  A  special  contract,  therefore,  with 
one  shipper  whereby  the  carrier  agreed  to  expedite  the 
1rans]>ortation   of  horses  by  guaranteeing   a   particMiIni- 

80.  Conference  Ruling  No.  232.        Co..  42  I.  C.  C.  35. 

81.  National  Lumber  and  Creo-  82.     Mitchell  Coal  &  Coke  Co.  v. 
soting  Co.  V.  Texas  &  Ft.   S.   Ry.       Pennsylvania  R.  Co.,  38  I.  C.  C.  40. 


358  Duties  to  Ixtkestatk  Shippehs.  [§  180 

connection  and  a  carriage  on  a  particular  train  at  the 
nsnal  published  rates,  was  void  in  that  the  shipper  was 
given  a  preference  and  an  advantage  not  open  to  all 
shippers  at  the  same  rate.  The  purpose  of  the  Inter- 
state Commerce  Act  would  be  defeated  if  sanction  wore 
given  to  such  special  contracts.^'  In  the  case  cited,  the 
United  States  Supreme  Court  reversed  a  judgment  ob- 
tained in  a  state  court  on  a  contract  under  which  the 
shipper  claimed  the  carrier  agreed  to  transport  his 
horses  from  a  point  in  Illinois  to  New  York  on  a  cer- 
tain special  train. 

§  181.  Preferential  Rates  to  Other  Carriers  as 
Shippers  Prohibited.  It  is  unlawful  to  apply  one  rule 
when  a  shipment  is  for  a  railroad  and  a  different  rule 
for  a  private  individual,  if  the  traffic  is  like  in  kind 
and  the  circumstances  and  conditions  of  transportation 
are  substantially  similar.  There  is  no  warrant  either  in 
the  common  law  or  under  the  statute  for  the  theory  that 
a  carrier  as  a  shipper  over  the  lines  of  another  carrier 
may  enjoy  or  be  given  a  preferred  status.**  Such  a  prac- 
tice cannot  be  upheld  without  resulting  in  unjust  discrim- 
inations which  it  was  the  purpose  of  Congress  to  abolish 
and  prohibit.  But  a  railroad  company,  on  the  other 
hand,  as  a  .shipper  or  consignee,  is  entitled  to  the  same 
consideration  as  any  commercial  shipper  or  consignee 
even  when  the  shipment  moves  partly  over  its  own  lines. 
It,  therefore,  follows  that,  in  such  cases,  the  carrier  as 
a  shipper  is  entitled  to  a  division  of  a  joint,  through 

83.  Chicago  &  A.  R.  Co.  v.  Kir-  mere  &  O.  R.  Co.,  23  I.  C.  C.  181: 
by,  225  U.  S.  155,  56  L.  Ed.  1033,  In  re  Company  Material,  22  I.  C. 
32  Sup.  Ct.  648,  Ann.  Cas.  1914A  C.  439;  In  re  Restricted  Rates, 
501.  20    I.    C.    C.    426;    Hitchman    Coal 

84.  Mitchell  Coal  &  Coke  Co.  ^  q^^^  ^q  y  Baltimore  &  0.  R. 
V  Pennsylvania  R.  Co.,  181  Fed.  ^-.^  ^6  I.  C.  C.  512,  17  I.  C.  C.  473; 
403;  Pennsylvania  R.  Co.  v.  In-  ^^  ^^  Contracts  of  Express  Com- 
ternational  Coal  Min.  Co.,  97  C  ^^  ^  ^  ^  ^46;  In  re 
C.  A.  383,  173  Fed.  1;  In  re  Rates.  j^^jj^^^^.^elegraph  Contracts,  12 
Divisions.  Rules,  etc  /.e  I.  C.  C.  ^^^  ^^ 
1;  Doran  v.  Nashville,  C.  &  St.  ^  ^  r^  ni 
L.  Ry.  Co.,  33  I.  C.  C.  523;  Cres-  v.  Central  V.  R.  Co.,  11  I.  C.  C. 
cent  Coal   &  Mining  Co.  v.   Balti  104. 


§  l«^l 


DlSCHlMl  NATION    AS   TO    KaTKS,    ETC. 


359 


rate;  but  that  (iivisioii,  to  avoid  discriiiiiiiatiuu,  must 
be  fixed  by  the  Hanie  cousideratioiis  which  would  deter- 
mine the  division  upon  tlirough  commercial   shipments 

in  which  tli<'  carrici'  luis  no  intci'cst  as  a  shipper.*'' 

§  182.     Foregoing  Rules  Illustrated   and  Applied. 

'IMic  Supreme  Coui'l,  for  example,  iu  I'cversiny-  a  decision 
ol"  the  Commerce  Court,  and  in  aflirming  an  order  of  the 
Interstate  Commerce  Commission,  iield  tiiat  the  services 
performed  by  a  carrier  in  connection  with  tlie  trans[^orta- 
tion  of  coal  to  be  used  for  fuel  by  railroads  as  com- 
])ared  with  the  services  performed  by  tiieni  in  connection 
with  the  transportation  of  other  coal  including  "com 
mercial"  coal,  were  alike  and  were  performed  under  sub- 
stantialh    similar    conditions    and    circumstances.'"      In 


Sfj.  In  10  Hates,  Uivisiun,  Rules, 
etc.,  3G  1.  ('.  C.  1;  111  re  Compuny 
Material,  22  I.  C.  C.  439. 

8t).  Interstate  Commerce  Com- 
mission V.  Baltimore  &  O.  R.  Co., 
225  U.  S.  326,  56  U  Ed.  1107,  32 
Sup.  Ct.  742,  Ann.  Cas.  1914A  504. 
Said  the  Court:  "The  circum- 
stances and  conditions  which  may 
so  far  be  considered  as  distin- 
guishing traffics  so  as  to  take 
from  different  transportation 
charges  the  vice  of  preference 
have  been  described  by  this  court. 
In  Wight  V.  United  States,  167 
U.  S.  512,  518,  it  is  said:  'It  was 
the  purpose  of  the  section  (2) 
to  enforce  equality  between  ship- 
pers, and  it  prohibits  any  rebate 
or  other  device  by  which  two  ship- 
pers, shipping  over  the  same  line, 
the  same  distance,  under  the  same 
circumstances  of  carriage,  are 
compelled  to  pay  different  prices 
therefor.'  These  words  are  given 
more  precision  by  the  declaration 
that  the  phrase,  '  under  substan- 
tially similar  circumstances  and 
conditions,'  as  found  in  section  2, 
refers  to  matters  of  carriage,  and 
does  not  include  competition.  And 


this  was  repeated  in  Interstate 
Commerce  Commission  v.  Ala- 
bama Midland  Ry.  Co.,  168  U.  S. 
144,  161^  loG.  The  facts  in  both 
cases  give  significance  to  the  rul- 
ings. In  the  first  case  the  charges 
to  the  shippers  were  the  same,  but 
one  was  given  extra  facilities;  in 
the  second  case  the  extraneous  ef. 
feet  of  competition  was  excluded 
as  an  element  in  the  application 
of  the  section.  There  is  also  ex- 
ample in  Interstate  Commerce 
Commission  v.  Delaware,  L.  &  W. 
R.  R.  Co.,  220  U.  S.  235.  It  whs 
there  held  that  a  carrier  could  not 
look  beyond  goods  tendered  to  it 
for  transportation  in  carload  lot 
'to  the  ownership  of  the  shipment' 
as  the  basis  for  determining  the 
application  of  its  established  ratei. 
Do  the  circumstances  and  condi- 
tions in  this  case  give  a  greater 
power  of  discrimination  and  jus- 
tify the  lower  charge  to  railroad- 
fuel  coal?  It  is  admitted  that  the 
fact  that  a  railroad  is  the  shipper 
or  consumer  is  not  a  circumstance 
or  condition  that  affects  the  car- 
riage, nor  can  the  different  uses  to 
which  the  coal  may  be  put,  and  it 


360  Duties  to  Interstate  Shippebs.  [§  182 

Capital  City  Gas  Co.,  v.  Central  V.  Ry.  Co.,  cited  suprci^ 
the  Commission  also  held  that  the  maintenance  of  a  rate 
on  coal  when  intended  for  "railroad  supplies"  and  main- 
tenance at  the  same  time  of  a  higher  rate  between  the 
same  points  on  coal  used  for  other  purposes  constituted 
unlawful  discrimination. 

In  another  case^'  the  Commission  held  that  a  rail- 
road company  might  lawfully  transport  men  and  sup- 
plies of  an  express  company  without  reference  to  any 
tariffs  when  they  are  employed  or  used  in  the  business 
of  the  express  company  upon  the  line  of  that  railway, 
but  that  the  railroad  company  might  not  lawfully  trans- 
port men  and  supplies  of  the  express  company  when 
tliey  were  employed  or  used  in  the  business  of  tlie  express 
company  at  points  not  on  the  line  of  that  railroad.  In 
Hitchman  Coal  &  Coke  Co.  v.  Baltimore  &  0.  R.  Co., 
cited  supra,  it  appeared  that  the  defendant  charged 
rates  on  coal  from  a  certain  district  to  Cleveland,  Ohio, 
of  one  dollar  per  ton  when  for  commercial  purposes, 
ninety-eight  cents  per  ton  when  for  vessel  fuel,  eighty- 
eight  cents  when  for  fuel  cargo  and  sixty-five  cents  per 
ton  when  for  railroad  purposes.  The  Commission  held 
there  was  no  intimation  in  the  Act  to  Regulate  Commerce 
that  a  carrier  as  a  shipper  might  be  given  a  status  dif- 
ferent from  or  more  advantageous  than  that  given  to  all 
other  shippers.  Similarly,  in  Pennsylvania  R.  Co.  v. 
International  Coal  Min.  Co.,  cited  supra,  the  Court  af- 
firmed the  judgment  of  the  lower  court  awarding  dam- 
ages because  the  plaintiff  had  been  charged  the  higher 

would   seem   necessarily   that   any  interest    after,    transportation?    It 

other  extraneous  condition  or  cir-  must  be  kept  in  mind  that  it  is 

cumstance  could   have  no  greater  not   the   relation    of   one    railroad 

potency.      Once    depart    from    the  to    another    with    which    we   have 

clear  directness  of  what  relates  to  any   concern,   but   the   relation    of 

the  carriage  only  and  we  may  let  a  railroad  to  its  patrons,  who  are 

in   considerations   which   may  be-  entitled  to  equality  of  charges.  See 

come  a  cover  for  preferences.  May  Pennsylvania  R.   R.   Co.  v.   Inter- 

a  carrier  look  beyond  the  service  national  Mining  Co.,  173  Fed.  Rep. 

it  is  called  upon  to  render  to  the  1" 

attitude  and  interest  of  the  ship-  87.     In  re  Contracts  of  Express 

pers  before,  or  their  attitude  and  Companies,  16  I.  C.  C.  246 


§  183]  Discrimination  as  to  Kates,  etc.  361 

rate  on  so-called  "free  coal"  tlian  others  lia<l  been 
(•liar<;-ed  on  so-called  "contract  coal."  The  Court  .said: 
"The  law  having  in  view  the  carriage  of  freight  and 
equal  rates  to  all,  it  is  clear  to  us  that  the  words  *sub- 
stanlially  similar  circumstances  and  conditions'  as  used 
in  this  sub-section,  are  those  which  affect  transportation, 
and  not  those  which  involve  personal  conditions  or  con- 
tractual relations  between  one  particular  shipper  and  the 
carrier,  but  are  such  things  only  as  are  circumstances 
of  carriage  generally." 

But  a  carrier  has  the  right  to  transport  the  employes 
and  materials  of  a  contractor  building  an  extension  to 
its  line  either  free  or  at  reduced  rates  without  being 
guilty  of  unjust  discrimination.  In  transportating  such 
character  of  traffic  over  its  own  road,  in  connection  with 
the  extension  or  improvement  of  its  own  line,  the  rail- 
road company  is  not  acting  in  the  performance  of  its 
duty  as  a  common  carrier.  Such  agreements  with  con- 
tractors for  free  transportation  are  outside  of  the  policy 
of  the  law  prohibiting  departures  from  published  tar- 
iffs.«« 

§  183.  Storage  Regulations  Must  Be  Enforced 
Without  Preference  or  Discrimination.  Any  variation 
from  the  established  and  commonly  enforced  rules  of  a 
carrier  for  the  |)rompt  removal  of  goods  from  freight 
depots,  or  for  the  loading  and  unloading  of  cars  on  rail- 
way tracks  or  ])rivate  sidings,  constitutes  an  obvious 
advantage  to  the  shii)per  or  consignee  favored.-''  The 
public  interests  therefore  require  that  freight  should  be 
removed  prom])tly  from  the  carrier's  premises,  and  stor- 
age regulations  should  be  observed  and  enforced  with- 
out discrimination.^*'    Thus,  a  rule  limiting  free  storage 

88.  Santa  Fe,  P.  &  P.  R.  Co.  90.  Commercial  E.xchange  of 
V.  Grant  Bros.  Const.  Co.,  228  U.  Philadelphia  v.  Ry.  38  I.  C.  C. 
S.  177,  57  L.  Ed.  787,  33  Sup.  Ct.  320;  Brey  v.  Pennsylvania  R.  R., 
474.  16   I.   C.   C.   497;     New   York   Hay 

89.  American  Warehousemen's  Exchange  Ass'n  v.  Pennsylvania 
Ass'n  V.  Illinois  C.  R.  R.,  7  I.  C.  R.  R.,  14  I.  C.  C.  178:  Wilson  Pro- 
C.  556.  duce    Co.    v.    Pennsylvania    R.    R., 

14  I.  C.  C.  170. 


362  Dl'TlKS    TO    1  X  I'KKSTATK    SlflPPKHS.  [§    183 

time  at  Philadelphia  to  two  days  was  held  not  to  bo 
unjustly  discrimiiialoiy.''^ 

§  184.  Haulage  by  Stage  or  Wagon  from  Destina- 
tion Points  not  a  Dissimilar  Circumstance  Justifying 
Lower  Rates.  In  eharginp:  hjolicr  rates  for  tlie  trans- 
portation of  freight  of  a  like  kind  to  certain  destinations 
for  eonsuniption  there,  than  for  freight  to  be  forwarded 
by  wagon  to  other  points  from  the  same  terminus,  car- 
riers are  guilty  of  unjust  discrimination,  for  the  fact  that 
goods  after  delivery  by  the  carrier  are  hauled  beyond 
that  point  in  wagons  to  other  towns,  does  not  constitute 
a  dissimilar  circumstance  in  the  transportation.  Thus, 
an  arrangement  by  which  carriers  between  St.  Tjoiiis  and 
Eureka  Springs,  ^Vrk.,  charged  less  for  goods  for- 
warded by  wagon  from  Eureka  Springs,  Ark.,  to  Harri- 
son and  other  towns  in  Arkansas,  than  for  the  same 
kind  of  freight  from  St.  Louis  to  merchants  at  Eureka 
Springs,  was  condemned  by  the  (\)mmission."^ 

The  same  principle  was  a])plied  by  the  Commission 
in  another  case  in  which  it  was  held  tliat  a  common 
carrier  may  not  lawfully  make  rates  to  a  given  point 
on  its  line  on  traffic  going  beyond  by  wagon  or  similar 
conveyances  which  are  lower  than  its  established  rates 
to  that  })oint  as  a  final  destination.^^  An  arrangement  of 
a  carri(>r  through  which  passenger  fares  to  Gardner, 
Montana  and  return,  were  lower  than  for  those  who  went 
beyond  that  point  l)y  stage  to  Mammoth  Hot  Sy)rings  or 
through  Yelhiw  Stone  National  Park,  constituted  an  un- 
just discrimination,  for  a  carrier  has  no  right  to  make 
one  rate  for  passengers  whose  journey  ends  at  ils  ter- 
minus and  a  lower  rate  for  jiassengers  who  ti'avel  boyond 
Hint  ]u)int  by  stage."* 

§  185.  Preparing  Cars  for  Shipment  of  Commodi- 
ties for  Some  Shippers  and  Refusing  Same  Service  to 
Others.     Where  special  preparation  is  reqnin^d  to  tit  a 

91.  Commercial     Exchange    of  9.3.      Bayou    ('ity    Rice    Mills    v. 
Philadelphia  v.  Ry..  38  I.  C.  C.  320.      Texas  &   N.  O.   R.    R..   18    I.   C.  C 

92.  Gary  v.  Eureka  Spring.s  Ry.,      490. 

7  I.  C.  C.  286.  94.     Wylie   v.   Northern    P.   Ry., 

11  I.  C.  C.  115. 


§  180. 


DlSCHlMlXATIoN     AS    '!( )     KaTKS.    ETC 


3G3 


car  for  the  sliipment  of  a  i^articular  commodity,  the 
task  slioiild  ordinarily  he  perfoimed  ])y  the  ship])er/'' 
iinh'ss  it  is  a  i)art  of  the  transportation  facilities  defined 
in  the  first  section  of  the  Act  and  which  it  is  the  duty 
of  a  carrier  to  ))rovide.""  Foi',  in  cases  <jf  carload  freiy:ht, 
whei-e  the  loadin":  is  done  i)y  the  shipi)er,  he  can  ordi- 
naril>'  pci'foi'iii  the  work  iind'c  cconoinicall)'  than  the  car- 
rier. 

But  allowances  to  one  shii)])er  for  the  woik  of  ])r(^- 
paring  the  car  for  a  shipment  while  declining-  a  similar 
])ayment  to  anotluM',  or  to  pay  at  one  place  while  refus- 
in.n'  to  ]:»ay  at  another,  unless  justifying-  circumstances 
and  conditions  are  shown,  creates  an  undue  discrimina- 
tion. For  example,  the  Missouri  Pacific  Railway  Com- 
l)an}'  made  allowances  foi-  lininii;  and  ))addin*<  cars  i>re- 
])aratory  for  Hoiii-  shipments  within  switchin;^  limits  in 
St.  Louis  and  refused  the  same  privilege  elsewhere. 
The  practice  was  condemned  hy  the  Commission."^ 

§  186.  Grain  Elevator  Service  Must  be  Open  to  All 
Shippers  Without  Preference.  There  are  two  kinds  of 
elevator  service  in  connection  with  grain,  one  called 
transportation  elevation  and  the  other  commercial  ele- 
vation. The  former  consists  in  the  passing  of  the  grain 
through  an  elevator  for  the  ]nirpose  of  transferring  it 
from  car  to  car  and  obtaining  its  weight  and  is  usually 
limited  to  ten  days  free  storage  in  the  elevator.  This  is 
a  part  of  the  transportation  which  the  carrier  may  be 
required  to  perform  under  the  amendment  of  1906.-" 
Commercial  elevation  involves  various  processes  in  the 
treatment  of  the  grain  itself  such  as  mixing,  cleaning, 


95.  In  re  Advances  Dunnage 
Allowances,  30  I.  C.  C.  539:  New- 
York  State  Shippers  Protective 
Ass'n  V.  New  York  Cent.  &  H  Riv- 
er R.  Co.,  30  I.  C.  C.  437;  South- 
western Missouri  Millers'  Club  v. 
St.  Louis  &  S.  F.  R.  Co.,  26  I.  C. 
C.  245;  Davies  v.  Louisville  &  N. 
R.  Co.,  18  L  C.  C.  540:  National 
Wholesale  Lumber  Dealers'  Ass'n 
v.  Atlantic  Coast  Line  R.  Co.,  14 
L  C.  C.   154. 


96.  Atchison,  T.  &  S.  F.  R.  Co. 
v.  United  States,  232  U.  S.  199,  58 
L.  Ed.  568,  34  Sup.  Ct.  291. 

97.  Southwestern  Missouri  Mil- 
liers'  Club  v.  St.  Louis  &  S.  F.  R. 
Co.,   26   I.  C.  C.   245. 

98.  Interstate  Commerce  Com- 
mission v.  Diffenbaugh.  222  U.  S. 
■i'2,  56  L.  Ed.  83.  32  Sup.  Ct.  22. 


364  Duties  to  Interstate  Shippees.  [§  ISG 

clipping,  drying,  etc.,  and  is  not  a  part  of  the  duty  of 
the  carrier.^^  As  the  carriers  are  required  to  furnish 
what  is  termed  transportation  elevation  as  distinguished 
from  commercial  elevation,  they  are  not  required  to  do 
so  at  their  own  expense. 

The  service  must  however  be  open  to  all  on  e(|ual 
and  reasonable  terms.  Proper  arrangements  must  be 
made  for  furnishing  elevation  for  all  shippers,  for  other- 
wise the  carrier  would  subject  itself  to  the  charge  of 
practicing  an  unlawful  discrimination.^  Having  the 
right  and  imposed  with  the  duty  of  furnishing  eleva- 
tion, the  carrier  has  the  right  to  operate  its  own  elevator 
or  may  make  arrangements  with  the  owner  of  an  elevator 
for  such  service." 

§  187.  Allowances  When  Owner  of  Elevator  is 
Shipper  of  Grain — Former  and  Present  Rule.  Allow- 
ances by  a  carrier  to  an  owner  of  an  elevator  who  was 
also  a  shipper  of  a  part  of  the  grain  passing  through 
his  elevator,  were  originally  condemned  by  the  Inter- 
state Commerce  Commission  for  the  reason  that  under 
such  circumstances,  a  person  who  was  both  a  shipper  of 
grain  and  the  owner  of  an  elevator  enjoyed  advantages 
not  open  to  all  others  in  that  he  was  enabled  thereby  to 
mix,  treat,  weigh,  clean  and  inspect  his  grain  in  his 
own  elevator.  It  was  held  that  the  allowance  pro  tanio 
was  a  contribution  by  the  carrier  to  the  owned  for  the 
cost  of  securing  these  commercial  benefits,  and  that  it 
resulted  in  an  undue  preference  when  paid  on  grain 
belonging  to  the  owner,  unless  confined  to  grain  re 
shipped  in  ten  days  and  not  mixed,  treated,  weighed 
and  inspected.''  But  the  Supreme  Court,  when  the  order 
of  the  Commission  in  the  cases  cited  came  before  it, 
held  that  allowances  to  owners  of  elevators  who  were 
also  shippers  of  grain  for  elevation  services  were  legal, 

99.     In  re  Elevator  Allowances,  3.     Traffic   Bureau   of  St.   Louis 

24  I.  C.  C.  197.  V.   Chicago,   B.  &  Q.  R.   Co.,   14   I. 

1.  In    re    Elevator    Allowances  C    C.  317;     In  re  Elevator  Allow- 
by  Union  Pacific,  12  I.  C.  C.  85.  ances   by   Union    Pacific,    14    I.    C. 

2.  In  re  Elevator  Allowances  by       C.  315. 
Union  Pacific,  14  I.  C.  C.  315. 


§    ISS]  DlSCF^lMINATIOX     AS     TO     HaTES,     ETC.  365 

altli()ii,i;li  the  Kliii)i)ei\s  duiiiiK  tli<'  i)r(K5C'.ss  dciiviMl  an 
advaiitajt^e  by  commoreially  treating  the  grain  while  in 
tlie  elevator. 

The  eonrt  furtlier  lu'ld  tliat  the  aHowance  should 
not  be  limited  to  the  actual  cost  of  the  elevation  but  that 
the  owner  was  entitled  to  reasonable  compensation  for 
the  services  rendered/  "The  ground  on  wliifli  tlie  ])ay- 
ment  to  owners  of  grain  finally  was  held  (hy  llic  (Com- 
mission) to  be  a  rebate,"  said  the  Court,  "had  been 
considered  from  the  beginning  and,  as  we  have  said,  had 
been  brought  to  the  mind  of  ('ongress.  It  is  that  when 
the  owners  of  the  elevators  own  the  grain  init  into  them 
they  have  the  o])i)ortunity  to  ])erform  other  services  to 
the  grain  in  the  way  of  treatment,  or  cleaning,  clii)i)ing, 
and  mixing  the  grain,  which  although  not  included 
under  the  term  elevation  or  jiaid  for  by  the  railroad,  it 
is  an  advantage  to  them  to  be  able  to  i)erform  at  the 
same  time.  This  advantage  is  thought  to  create  an 
undue  preference  and  unjust  discrimination.  *  *  * 
On  the  contrary  tlie  act  of  Congress  in  terms  contem- 
plates that  if  the  carrier  receives  services  from  an  owner 
of  property  transported,  or  uses  instrumentalities  fur- 
nished by  the  latter,  he  shall  pay  for  them.  That  is 
taken  for  granted  in  Sec.  15;  the  only  restriction  being 
that  he  shall  pay  no  more  than  is  reasonable,  and  the 
only  permissive  element  being  that  the  Commission  may 
determine  the  maximum  in  case  there  is  complaint  (or 
now,  upon  its  own  motion.  Act  of  June  18,  1910,  c.  309, 
Sec.  12,  36  Stat.  539,551).  As  the  carrier  is  required  to 
furnish  this  part  of  the  transportation  upon  re(iuest  he 
could  not  be  required  to  do  it  at  his  own  expense,  and 
there  is  nothing  to  prevent  his  hiring  the  instrumental- 
ity instead  of  owning  it." 

§  188.  Allowances  for  Lighterage  Services  to  Ship- 
per Within  Free  Delivery  Zone  not  Discriminatory  as 
to  Shippers  Beyond  Zone.  Carriers  are  freciuently  com- 
pelled by  geographical  and  })hysical  conditions  to  estal)- 

4.      Interstate    Commerce    Com-       mission  v.  Diffenbaugh,  222  U.  S 

42,  56  L.  Ed.  83,  32  Sup.  Ct.  22. 


366  Duties  to  Tntekstate  Shippers.  [§  188 

lisli  limits  within  which  they  deliver  traffic  without  ad- 
ditional charges;  for  the  estahlishment  of  free  delivery 
districts  is  a  matter  within  the  business  discretion  of  the 
carrier.  They  may,  therefore,  [)ay  a  jiisi  and  reasonable 
compensation  to  a  shi])per  for  lightering  traffic  within 
su(^h  zones  to  their  terminals  and  refuse  to  ])ay  shippers 
outside  of  the  free  delivery  zone  to  the  same  terminal 
without  being  guilty  of  any  unjust  discrimination  under 
the  statute.^ 

This  ])rinciple  was  established  by  the  national  Su- 
preme Court  after  an  extended  litigation  commencing  be- 
fore the  Commission  in  1908  and  ending  with  the  final  de- 
cision of  the  Court  in  1913.*^  In  this  case  it  appeared 
that  the  defendant  railroad  companies  were  interstate 
trunk  lines  whose  freight  rail  terminals  were  at  the  New 
Jersey  shore  of  the  harbor  of  New  York,  Transporta- 
tion of  freight  into  and  out  of  the  city  of  New  York 
was  conducted  by  means  of  car  floats,  barges  and 
steam  lighters  operating  between  the  city  and  the  New 
Jersey  shore.  To  meet  these  conditions  the  carriers  with 
freight  terminals  on  the  New  Jersey  side  of  the  harbor 
had  for  many  years  established  a  free  lighterage  ser- 
vice to  and  from  a  defined  area  along  the  river  front  in 
New  York  City,  the  rate  into  or  out  of  such  points  being 
the  same  as  that  applicable  to  the  New  Jersey  rail  ter- 
minals. Within  these  free  zones  on  the  New  York  side 
the  carriers  maintained  public  freight  terminal  stations 
at  which  they  delivered  eastbound  freight  and  accepted 
west -bound  freight.  Some  of  these  stations  were  owned 
solely  by  one  carrier;  others  were  joint  depots  and  some 
were  oi)erated  by  third  persons  who  managed  and  oper- 
ated them  under  contracts  and  as  agents  for  the  car- 
riers. One  of  tlie  latter  stations  was  owned  and  operated 
by  Arbucle  Brothers  to  whom  the  carriers  agreed  to  pay 
an  allowance  for  maintaining  the  station  and  also  for 
lightering  all  freight  therefrom  to  the  railroad  terminals 

5.  Federal  Sugar  Refining  Co.  v.  &  0.  R.,  231  U.  S.  274.  58  L.  Ed. 
Baltimore  &  O.  R.  Co.,  20  I.  C.  C.  218,  34  Sup.  Ct.  75;  Baltimore  & 
200,  17  I.  C.  C.  40.  O.  R.  Co.  v.  United  States,  200  Fed. 

6.  United    States   v.    Baltimore      779. 


§l(ScSl  Discrimination    as    io    Hatks,    etc.  367 

of  the  New  Jer.sey  sliore.  Aibuele  Brothers  were  large 
sliippers  of  sugar  and  maintained  a  refinery  close  to 
the  station.  Nearly  one-third  of  the  west-bound  ship- 
ments through  the  station  were  made  hy  Arbuele  Bro- 
thers, the  remaining  two-thirds  of  tiie  tonnage  being 
furnished  by  the  public.  For  lightering  both  the  west 
and  east-bound  freight  between  the  New  York  station 
and  the  New  Jersey  terminals,  Arbucle  Brothers  re- 
ceived from  the  carriers  an  allowance  ranging  from 
three  to  four  and  one-fifth  cents  per  hundred  pound. 
The  Federal  Sugar  Refining  Company,  also  a  refinery  of 
sugar  and  a  competitor  of  Arbucle  Brotiiers,  had  a  re- 
finery at  Yonkers,  New  York,  adjacent  to  a  pier,  and  out- 
side the  free  lighterage  limits  established  by  the  car- 
riers    in  the  harbor  of  New  York. 

This  company  did  not  llicrefore  enjoy  the  benefit 
of  the  free  lighterage  service  offered  by  the  carriers 
under  their  tariffs  to  shippers  at  piers  within  the  limits. 
Since  Arbucle  Brothers  received  an  allowance  on  deliv- 
ering their  sugar  at  the  New  Jersey  terminal  and  as  it 
was  corhpelled,  on  the  other  hand,  to  pay  three  cents  per 
hundred  pounds  for  having  its  sugar  delivered  at  the 
same  terminal,  the  Federal  Sugar  Refining  Company 
contended  that  the  carriers  were  subjecting  it  to  an  un- 
lawful discrimination  when  they  declined  to  give  it  a 
small  allowance  for  lightering  its  sugar  to  the  same 
place  and  in  the  same  manner.  Under  these  facts,  the 
Commission  held  that  the  services  rendered  by  Arbucle 
Brothers  was  purely  accessorial  in  delivering  its  own 
sugar  at  the  New  Jersey  terminal. 

While  the  Commission  recognized  that  a  carricir 
may  lawfully  pay  the  owner  of  freight  for  services  con- 
nected with  transportation,'  it  held  that  the  lighterage 
service  was  no  part  of  the  transportation.  The  pay- 
numt  of  the  allowance  to  Arbucle  Brothers  and  a  refusal 
to  allow  the  Federal  Sugar  Refining  Company  compensa- 
tion for  similar  services,  was  held  to  be  an  unjust  dis- 

7.  Interstate  Commerce  Com-  Interstate  Commerce  Commission 
mission  v.  Diffenhaugh.  222  U.  S  v.  Stickney,  21.'i  U.  S.  98,  54  L. 
42,  5G  L.  Ed.   83,  32  Sup.  Ct.   22:       Ed.  112,  30  Sup.  Ct.  66. 


368  Duties  to  Interstate  SniprEKs.  [^^  188 

crimination.  The  Commerce  Court  and  the  national  Sn- 
preme  Court,  liowever,  held  that  the  services  rendered  by 
Arbncle  Brothers  were  not  accessorial  but  were  a  part 
of  the  transportation  from  the  public  receiving  station 
of  the  carriers  in  New  York  to  their  terminals  in  New 
Jersey,  and  as  the  carriers  were  recpiired  to  furnish  the 
transportation,  there  was  nothing  in  the  statute  to  pre- 
vent them  from  empk^ying  others  to  do  the  work.  The 
payment  to  one,  under  the  circumstances,  and  a  refusal 
to  i^ay  the  other,  was  not  an  unjust  discrimination  be- 
cause one  was  situated  within  the  free  zone  and  tlie 
other  beyond.  This  condition  created  a  dissimilar  cir-' 
cnmstance  justifying  inequality  of  treatment. 

§  189.  Rebating  Part  of  Freight  Rates  in  Payment 
for  Land  for  Right  of  Way.  A  common  carrier  subject 
to  the  control  of  the  Act  may  not  pay  or  return  to  the 
shipper  any  part  of  an  interstate  freight  rate  under  any 
pretense  whatever.  Thus,  a  contract  whereby  a  car- 
rier agreed  to  pa}-  a  shipper  a  certain  per  cent  of  the 
rates  paid  for  the  shipment  of  lumber,  in  payment  of 
land  purchased  for  a  right  of  way,  is  illegal,  although 
the  amount  of  the  rebate  was  much  less  than  the  value 
of  the  land.* 

§  190.  Assisting  One  Shipper  to  Collect  Private 
Charges  and  Refusing  Same  Service  to  Another.  A 
common  carrier  may  not  lawfully  assist  one  of  its  ship- 
pers to  collect  his  own  private  charges  against  a  con- 
signee and,  under  similar  conditions,  refuse  to  perform 
the  same  service  for  another.  That  the  services  were 
voluntary  on  the  part  of  the  carrier  and  not  compulsory 
does  not  affect  their  discriminatory  nature.  For  ex- 
ample, shipments  of  freight  from  Canada  were  consigned 
to  custom  brokers  at  Newport,  Vt.,  a  port  of  entry,  who 
paid  the  custom  charges  and  then  forwarded  the  ship- 
ments to  the  consignees  in  the  United  States. 

An  agent  of  the  defendant  carrier  was  also  a 
licensed  custom  broker  and   he  was  permitted  to  for- 

8.     Fourche  River   Lumber   Co.       v.   Bryant  Lumber  Co.,   230   U.    S. 

316,  57  L.  Ed.  1498,  33  Sup.  Ct.  887. 


§    191]  DlSCHlMINATlOX     AS     Id     HaTKS,    ETC.  369 

ward  slii])ments  consigned  to  liiin  without  proiJaymont 
of  tlx'  cliar^ps,  an  arran^^omont  liavin.ij:  bcon  iiiado  l)y 
wliicli  tlie  defendant  collected  custom  duties  and  liis 
brokerage  fees  for  him  on  delivery.  The  defendant 
cai'rier  refused  to  perform  simihir  services  for  anotlier 
l)roker  at  the  same  ])lace.  Tlu'  Commission  held  that 
such   a   practice  amounted   to   unlawful   di.-ciitnination." 

§  191.  Discrimination  in  Demanding  Cash  Payment 
of  Some  Shippers  and  Extending  Credit  to  Others — Con- 
flicting Decisions.  Under  the  common  law  a  carrier  had 
the  rii^ht  to  recjuire  the  i)repayment  of  char^jes  of 
freight  from  one  shipper  and  to  give  credit  for  such 
charges  to  another  shipper  similarly  situated.'"  But 
whether  an  interstate  common  carrier  is  guilty  of  un- 
reasonable or  undue  preference  under  the  Interstate 
Commerce  Act  in  recjuiring  the  prepayment  of  freight 
charges  from  one  shipper  and  extending  credit  to 
another,  similarly  situated,  is  under  the  decisions  of  the 
Federal  circuit  courts  of  appeal  doubtful,  though  the 
Interstate  Commerce  Commission  has  indicated  that  a 
carrier  may  extend  credit  "within  reasonable  and  non- 
discriminatory limits"  but  what  those  limits  were,  the 
Commission  did  not  decide." 

The  Federal  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  Judge  Hook  dissenting,  held  that  a  car- 
rier subject  to  the  Federal  statute,  had  the  right  to  re- 
(piire  ])repayment  of  charges  for  transportation  from 
one  and  to  give  credit  to  another  shipper  similarly  sit- 
uated, such  a  preference  not  being  unreasonable  within 

9.  Emery  v.  Boston  &  M.  R.  So.,       C.  C.  A.  417,  63  Fed.  775,  26  L.  R. 
38  I.  C.  C.  636.  A.   192;     Oregon   Short-Line   &   U. 

10.  Atchison,  T.  &  S.  F.  R.  Co.  N.Ry.  Co.  v.  Northern  Pac.  R.  Co.. 
V.  Denver  &  N.  0.  R.  Co..  110  U.  9  c.  C.  A.  409,  61  Fed.  158;  Brown 
S.  667,  28  L.  Ed.  291,  4  Sup.  Ct.  &  Brown  Coal  Co.  v.  Grand  Trunk 
185;  Southern  Indiana  Exp.  Co.  v.  j^y  System,  159  Mich.  565.  29  L. 
United  States  Exp.  Co.,  35  C.  C.  A.  ^  ^  ^^  g^  g^^  ^24  N.  W.  528; 
172.  92  Fed.  1022.  88  Fed.  659;  ^^^^^^^  ^^  Richmond  &  D.  R.  Co., 
Gulf,  C.  &  S.  Ry.  Co.  V.  Miami  S. 
S.  Co..  30  C.  C.  A.  142,  86  Fed. 
407:  Little  Rock  &  M.  R.  Co.  v. 
St.  Louis  Southwestern  Ry.  Co.,  11  Adams  Exp.  Co..  7  I.  C.  C.  115 


108  N.  C.  612,  13  S.  E.  137. 

11.     Boise   Commercial   Club   v. 


1    Control    Carriora    24 


370  I)t'tik.s  to  In'tpir.statk  Shippers.  [^  191 

thf  meaning  of  the  s-tatute.'^  The  (Jirnuit  Court  of  Ay>- 
f>eals  for  the  Fifth  Circuit  also  held  that  under  the  Inter- 
state Commerce  Act  a  common  carrier  might  demand 
prepayment  from  one  connecting  carrier  and  not  from 

another/' 

On  the  other  hand  the  Federal  Circnir  Court  of 
Appeals  for  the  Sixth  Circuit  decided  that  a  carrier 
violated  the  Elkina  Act  in  giving  credit  to  a  shipi'>er 
while  denying  the  same  privilege  to  another,  although 
the  other  shiyjper  did  not  know  of  the  partiality  and 
and  did  not  demand  equal  treatment," 

§  192.  Deduction  from  Freight  Rat*::s  to  Pay  Ship- 
per for  Building  Tie  Hoist  Invalid.  Ti^ie  term  "rate" 
as  li.sed  in  the  Act  meann  the  net  cost  to  the  shipper  for 
the  transportation  of  his  property,  that  is,  the  net 
amount  the  carrier  receiyes  from  the  shipi)er  and  re- 
tains. In  determining  the  net  amount  in  a  given  cas^, 
all  money  transactions  of  every  kind  or  character,  hav- 
ing a  bearing  on,  or  relation  to,  any  particular  instance 
of  transportation,  whereby  the  cost  to  the  shipper  is 
directly  or  indirectly  enhanced  or  reduced,  mngt  be  taken 
into  consideration. 

Applying  this  test,  a  contract  between  a  lumber 
comy)any  and  a  railroad  company  by  which  the  former 
agreed  to  build  a  tie  hoist  on  the  line  of  the  carrier,  in 
consideration  for  which  the  railroad  company  agreed  to 
transj^ort  the  ties  of  the  Imnber  company  at  a  certain 
rate,  ten  x^er  cent  of  which  was  to  be  deducted  and  re- 
funded to  the  lumber  company  in  payment  for  building 
the  hoist  until  the  amount  refunded  was  equal  to  the 
cost  of  construction,  was  held  to  be  invalid  as  it  gave 

12.  Gamble-Robinson   Commis-  14.    Hocking  VaUej   R,   Co.  r, 

Hion  Co.  V.  Chicago  k  N.  W.  R.  Co.,  United    States,   127   C.   C.   A.   285. 

94  C.  C.  A.  217,  168  Fed.  161,  21  U  210  Fed.  7-35;    To  the  same  effect 

R.  A.  (S.  H.)  9S2,  16  Ann.  Caa.  613.  under  state  laws:    WadJey  South- 

13.  Gulf,  C.  Sc  S.  Ry.  Co.  V.  Mi-  era  R.  Co.  v.  State,  137  Ga.  4&7,  73 
ami  S.  S.  Co.,  30  C.  C.  A  142,  86  H.  E.  741;  Adams  Exp.  Co.  v.  State. 
Fed.  407.  161  Ind,  328,  *;-  '^^    ^:    '^^^ 


<§.  194 J  Discrimination  as  t(j  Rates,  etc.  371 

the  lumber  company   an    nnrliio   advantage   over   oilier 
shippers.^'' 

§  193.  Difference  in  Rates  on  Freight  Not  Justified 
by  Different  Methods  of  Loading.  A  |>ro vision  in  lli<' 
tariff  of  a  cai'ricr  (rn'cdiiiii'  that  coal  Ioa(l<'<l  into  a  car 
from  wau'oiis  oi-  sleds  at  a  side  track  would  be  sul).ject  to 
an  additional  charge  of  lifty  cents  per  ton,  wliih*  a  sim- 
ilar charge  was  not  made  when  cars  were  loade<l  from 
a  ti])])le,  was  songlit  to  be  ui)held  by  a  carrier  on  the 
ground  that  the  discrimination  w^as  justified  by  the 
difference  in  cost  of  service;  but  the  Commission  held 
that,  regardless  of  the  longer  time  consumed  in  loading 
cars  from  wagons,  the  practice  was  an  unlawful  dis- 
crimination against  those  who  did  not  own  tipples. 
"Making  certain  charges,"  said  the  Commission,'"  "for 
the  transportation  of  coal  shipped  in  car-loads  when  the 
car  is  loaded  by  tii)ple  and  exacting  a  higher  charge 
when  it  is  loaded  in  some  other  way,  and  for  that  reason, 
is  not  justified  by  difference  in  cost  to  the  carrier  be- 
tween different  methods  of  loading,  or  by  the  other 
facts  appearing  in  this  case,  renders  the  higher  rate  thus 
made  unreasonable  and  unduly  discriminatory,  first,  as 
against  complainant,  and  second,  as  against  all  other 
shippers  of  coal  except  those  who  load  by  tipple,  and 
constitutes  a  violation  of  sections  1  and  '.\  of  said  Act." 

§  194.  Carrier  "Spotting"  Cars  for  One  Shipper 
and  Refusing  Same  Service  to  Another  Similarly  Sit- 
uated. The  obligation  of  a  common  carrier  concerning 
the  delivery  and  receipt  of  car-load  freight  to  and  from 
private  sidings  and  industrial  tracks  is  restricted  to  the 
acceptance  and  delivery  at  a  ]X)int  on  the  siding  a  suf- 
ficient distance  from  the  ]^oint  of  connection  with  the 
tracks  of  the  carrier  to  clear  such  tracks.  The  carrier 
is  not  required  to  place  or  "spot"  cars  at  such  points 
on  an  industrial  railroad  that  the  sliii^per  may  designate. 

15.     Chesapeake  &  O.   R.  Co.  v  16.     Glade  Coal  Co.  v.  Baltimore 

Standard  Lumber  Co..  98  C.  C.  A.      &  0.  R.  Co.,  10  I.  C.  C.  226. 
81,  174  Fed.  107. 


372  DuTiE8  TO  Interstatp:  Shippeks.  [§  194 

But  if  a  railroad  company  voluntarily  undertakes 
to  perform  such  a  service  for  some  sbijipers  and  refuses 
to  perform  the  same  service  for  other  shippers  under 
substantially  similar  circumstances,  the  discrimination 
is  undue. ^'  An  allowance  therefore  to  certain  terminal 
railroads  of  $2.50  per  car  for  switching  cars  to  the  fur- 
nace plants  of  certain  companies  while  denying  the  same 
allowance  to  one  terminal  company  doing  similar  switch- 
ing, constituted  an  undue  preference. ^^ 

§  195.  Trap  Car  Service  Not  Unlawful  If  Practiced 
Without  Discrimination.  For  the  purpose  of  eliminat- 
ing the  cost  of  drayage  and  lessening  the  congestion  in 
freight  stations,  carriers  frequently  furnish  shippers  on 
private  sidings  empty  cars  which  are  loaded  with  less- 
than-carload  shipments  and  then  are  hauled  to  local 
freight  or  transfer  stations  where  the  shipments  are  as- 
sorted and  placed  in  other  cars  to  be  forwarded  to  their 
respective  destinations. 

Conversely  inbound  freight  is  frequently  delivered 
in  the  same  waj^  from  the  freight  stations  to  private 
sidings.  When  such  cars  were  loaded  to  a  prescribed 
limit,  it  appeared  in  evidence  in  an  investigation  before 
the  Commission  that  the  carriers  usually  made  no 
charge  for  this  special  service  in  receiving  and  deliver- 
ing less  than  carload  shipments.  This  practice  is  known 
as  the  trap  or  ferry  car  service,  and,  when  given  to 
shippers  without  any  undue  discrimination  or  prefer- 
ence, is  not  unlawful.^'-' 

17.  Mitchell  Coal  &  Coke  Co.  v.  within  the  discretion  of  the  de- 
Pennsylvania  R.  Co,  38  I.  C.  C.  fendant;  but  which  ever  course  is 
40,  in  which  the  Commission  said:  pursued  the  statutory  prohibition 
"The  service  over  private  tracks  of  unjust  discrimination  and  un- 
from  the  lines  and  coke  ovens  of  reasonable  preference  or  advan- 
shippers  to  the  rails  of  the  car-  tage  must  be  observed." 
rier  is  not  now  nor  was  it  during  18.  Buffalo  Union  Furnace  Co. 
the  period  of  the  action  either  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  21 
compelled    or    prohibited    by    the  I    C.  C.  620. 

statute    or    by    common    law.      To  19.     Trap  or  Perry  Car  Service 

furnish    it    or    to    withhold    it    is  Charges,  34  I.  C.  C.  516. 


CHAPTER  X 

Unlawful   Preferences   in   Rates   and    Practices    Be- 
tween  Cities,   Communities   and    Localities 

Sec.  196.  Preferences  Between  Cities  and  Localities  Under  the  Com- 
mon Law  Not  Forbidden. 

Sec.  197.  Equality  Between  Communities  under  Similar  Circumstanc3s 
and  Conditions  Required. 

Sec.  198.  When  Higher  Rates  to  One  Point  Than  to  Another  are  Un- 
justly Discriminatory. 

Sec.  199.     All  Localities  Entitled  to  Non-Discriminatory  Rates. 

Sec.  200.  Undue  Prejudice  Between  Localities  Resulting  from  Differ- 
ent Interstate  and   Intrastate  Rates — Shreveport  Case. 

Sec.  201.  Every  City  and  Locality  Entitled  to  Benefit  of  Natural  Ad- 
vantages. 

Sec.  202.  Rates  to  One  Locality  Per  8e  Reasonable,  Unlawful  if  Anoth- 
er Locality  is  Prejudiced  Thereby. 

Sec.  203.  Basing  Point  System  of  Rate  Making-Legal  but  Subject  to 
Control  of  Commission. 

Sec.  204.  Discriminations  and  Preferences  Prouuced  by  Competition 
Between  Localities  not  Undue  or  Unreasonable. 

Sec.  205.  Limitation  Upon  Competition  in  Determining  Whether  Dis- 
crimination is  Unjust  or  Preference  Undue. 

Sec.  206.  Difference  in  Amount  of  Traffic  Between  Localities  Similarly 
Situated  no  Justification  for  Discriminatory  Rates  and 
Fares. 

Sec.  207.  Carrier  not  Guilty  of  Discrimination  Between  Localities 
When  it  Does  not  Participate  in  Rates  to  Favored  Point. 

Sec.  208.  Discrimination  Between  Different  Coal  Fields  Served  by 
Different  Carriers  not  Unlawful. 

Sec.  209.  Discrimination  in  the  Establishment  and  Maintenance  of 
Group  Rates. 

Sec.  210.  Different  Rates  in  Opposite  Directions  Over  Same  Lines  Not 
Discriminatory. 

Sec.  211.  Discrimination  in  Absorbing  Switching  Charges  at  One  Point 
and  Refusing  at  Another. 

Sec.  212.  Discrimination  Through  Joint  Rates  Between  Two  lx)cali- 
ties  Similarly  Situated  Prohibited,  When. 

Sec.  213.  Differentials  Between  Atlantic  Coast  Cities  Legitimately 
Based  upon  Competitive  Relations. 

Sec.  214.  Maintaining  Higher  Rates  on  Branch  Line  Parallel  to  Main 
Line   Serving   Same  Territory. 

Sec.  215.  Proportional  Part  of  Through  Rate  Lower  Than  Local  Rates 
Between   Same   Points  Not   Discriminatory. 

Sec.  216.  Rebilling  and  Reshipping  Privilege  at  Nashville  on  Grain 
From  Ohio  River  to  Southeastern  Points  Discriminatory. 

(373) 


374  Duties  to  Tntkrstatk  Siiii>i'kks.  [§  19G 

Sec.  217.     Differential    Between    Cities    on    Opposite    Banks    of    Rivers 

Crossed  by  Expensive  Bridges. 
Sec.  2 IS.     Carriers   Unduly   Favoring   Industries   on   Their   Own   Lines 

as  Against  Competitors  on  Other  Lines. 
Sec.  219.     Stopping  Carload   Shipments  at  Points  Kii    Route  to  Finish 

Loading  Discriminatory,   When. 

§  196.  Preferences  Between  Cities  and  Localities 
Under  the  Common  Law  Not  Forbidden.  Neiihor  undci' 
the  common  law,  nor  under  the  English  statute  upon 
which  the  Interstate  Commerce  Act  was  largely  based, 
was  discrimination  of  carriers  between  cities  and  inde- 
pendent communities  forbidden.  The  word  "locality" 
does  not  appear  in  the  ecpiality  clause  of  the  English 
Act  of  1854  upon  which  Section  3  was  modeled.  A 
shipper  under  the  common  hiw,  hiid  the  right  to  deniaiid 
a  reasonable  rate,  but  what  the  carrier  charged  another 
shipper  in  another  locality  did  not  conceru  him.  One 
locality  had  no  legal  right  to  complain  of  the  rates 
charged  to  shippers  of  another  community. 

This  absolute  freedom  from  governmental  control 
in  the  practice  of  discrimination  between  cities  led  to 
many  serious  abuses,  and  the  carriers  had,  prior  to  the 
adoption  of  the  Act  to  Regulate  Commerce,  the  |)ower  to 
make  and  unmake  cities  by  granting  preferential  rates 
to  one  city  over  another.  Equal  treatment  between 
localities  similarly  situated  is,  therefore,  a  distinct  A- 
merican  doctrine  forced  upon  the  carriers  in  the  passage 
of  Section  3  largely  because  of  the  arbitrary  and  un- 
reasonable preferences  practiced  by  them  in  the  days 
of  immunity  from  federal  control. 

§  197.  Equality  Between  Communities  under  Simi- 
lar Circumstances  and  Conditions  Required.  The  per- 
vading ijrinciple  of  sections  2  and  3  is  ecjuality  for  all 
communities  and  jDersons  under  substantially  similar 
circumstances  and  conditions.  This  rule  demands  such 
an  adjustment  of  rates  that  shall  not  discriminate  unduly 
in  favor  of  the  business  of  some  localities  and  prove 
destructive  to  the  same  pursuits  in  other  localities,  and 
prohibits  carriers  from  imposing  excessive  rates  where 
the  absence  of  competition  affords  opportunity  to  do  so, 


§  V.l\)\  J'hefkhkni'Es  J5et\vi-:i:n   J^ocalitiks.  o7.j 

and  thus  unfairly  stimulate  favored  conunimities  at  the 
expense  of  others/  Thus,  wliere  it  ai)i)eared  that  a  car- 
rier owning  a  line  between  the  Dakotas  and  Milwaukee, 
operated  two  routes  between  Minneapolis  and  Milwau- 
kee, a  rate  of  7^  cents  per  hundred  jtounds  on  wheat 
to  points  on  one  of  these  routes,  and  a  rate  ol"  1.")  cents 
per  hundred  pounds  to  points  on  the  other  route,  was 
iield  to  unduly  favor  the  cities  on  the  former  route. - 

§  198.  When  Higher  Rates  to  One  Point  Than  to 
Another  are  Unjustly  Discriminatory.  Mere  proof  that 
the  rates  to  one  locality  are  higher  than  to  anothci- 
locality,  does  not  establish  undue  preference  or  unjust 
discrimination  under  the  statute.  It  must  be  further 
shown  that  the  general  condition  of  transportation  and 
the  circumstances  surrounding  the  traftic  are  substanti- 
ally similar  and  that  such  a  relationshi])  exists  between 
llie  two  localities  that  the  commerce  of  one  is  adversely 
affected,  and  the  commerce  of  the  other  is  materially 
benefited,  because  of  a  higher  rate  to  one  than  to  the 
other.  Applying  this  principle,  the  Commission  held 
that  there  was  a  closer  geographical  and  economic  re- 
lation between  the  cities  of  A.storia,  Or.,  and  Seattle 
and  Tacoma,  Wash.,  than  was  reflected  in  the  tariffs  of 
the  carriers  to  l)oth  points  and  a  discontinuance  of  the 
discrimination  was  ordered.^ 

§  199.  All  Localities  Entitled  to  Non-Discrimina- 
tory Rates.  l^]very  locality  is  entitled  to  not  only  a  rea- 
sonable rate  l)ut  a  rate  that  is  non-discriminatory.  A 
carrier  does  not  fulfill  its  obligations  under  the  law  lt\- 
giving  the  community  a  reasonable  rate.  It  must  view 
its  rates  as  a   whoh^   and   must   abstain   from   effecting 

1.     Daniels  v.  Chicago,   R.   I.  &  Trade  of   Farmington   v.   Chicago. 

P.  Ry.  Co.,  6  I.  C.  C.  458;    Page  v.  M.  &  St.  P.  Ry.  Co..  1  I.  C.  C.  215. 

Delaware.    L.    &    W.    R.    Co.,    6    1.  II.  C.  R.  608. 

C.  C.  148;    :Manufacturers  and  Job-  2.     Board  of  Trade  of  Farming- 

bers'  Union  of  Mankato  v.  IMinne-  ton    v.    Chicago,   M.   &    St.    P.    Ry. 

apolis  &  St.  L.  Ry.  Co..  4  I.  C.  C.  Co.,  1   I.  C.  C.  215.  1   I.  C.   R.   608. 

79:    Tn  re  Chicago.  St.  P.  &  K.  C.  3.     City  of  Astoria  v.   Spokane, 

Rv.,    2    I.    C    C.    231:       Board    of  P.  &  S.  Ry.  Co.,  38  I.  C.  C.  16. 


376  Duties  to  Interstate  Shippees.  [§  199 

thereby  any  change  or  preference  to  one  community  over 
anotlier,  Tvhich  do  not  arise  necessarily  out  of  the  trans- 
portation advantages  wliich  one  has  over  the  other.* 

§  200.  Undue  Prejudice  Between  Localities  Result- 
ing from  Different  Interstate  and  Intrastate  Rates — 
Shreveport  Case.  Notwithstanding  the  provision  of  Sec- 
tion 1  excluding  the  application  of  the  statute  to  the 
transportation  of  property  wholly  within  one  state  and 
not  shipped  to  another  state  or  foreign  country,  Con- 
gress has  the  power  to  control  strictly  intrastate  rates 
even  when  established  by  state  authority,  when  those 
rates  result  in  an  unjust  discrimination  or  undue  pref- 
erence against  interstate  traffic,  and,  by  the  passage 
of  sections  2  and  3,  it  has  lawfully  delegated  to  the 
Interstate  Commerce  Commission  the  power  to  forbid 
such  injurious  discriminations;  for  the  language  of  these 
two  sections  is  sweeping  enough  to  embrace  all  the  dis- 
criminations of  the  sort  described  therein  which  it  was 
within  the  power  of  Congress  to  condemn. 

There  is  no  exception  or  qualification  with  respect 
to  an  unreasonable  discrimination  against  interstate 
traffic  produced  by  the  relation  of  intrastate  to  inter- 
state rates  as  maintained  by  the  carriers.  The  statute 
applies  to  all  interstate  railroads  and  makes  unlawful 
every  act  which  operates  to  the  undue  prejudice  of  any 
locality.^  The  case  cited  is  known  as  the  Shreveport 
case  and  marks  an  epoch  in  the  regulation  of  interstate 
rates.  It  appeared  in  the  order  and  decision  of  the 
Commission  in  that  case*'  that  the  interstate  rates  from 
Shreveport,  I^a.,  to  Dallas,  Tex.,  and  intermediate  points 
on  the  line  of  the  defendant  carrier  were  very  much 
higher  in  proportion  to  distance  than  the  state  rates 
maintained  by  the  carrier  from  Dallas,  Tex.,  to  the  same 
intermediate  points  in  the  state  of  Texas.  For  example, 
the  rate  on  farm  wagons  from  Shreveport,  La.,  to  Mar- 

4.  Railroad  Commission  of  Ne-      v.  United  States,  234  U.  S.  342,  58 
vada  V.  Southern  P.  Co.,  21  I.  C.  C.      L.  Ed.  1341,  34  Sup.  Ct.  833. 

329.  6.     Mereditli  v.  St.  Louis  S.  W. 

5.  Houston,  B.  &  W.  T.  R.  Co.       Ry.  Co.,  23  I.  C.  C.  31. 


§  200]  Preferences  Between  Localitiks.  377 

sliall,  Tex.,  a  distanco  of  forty-two  miles,  was  fifty-six 
cents  per  hinidi-ed  pounds,  wliile  the  rate  from  Dallas  to 
Marshall,  a  distance  of  one  liundred  forty-seven  miles, 
was  only  thirty-six  cents. 

Under  such  an  adjustment  of  freight  rates,  due  to 
the  low  intrastate  rates,  Shreveport  was  severely  handi- 
cai)i)ed  in  its  coni])etition  with  Dallas  for  the  trade  of  the 
intervening  territory,  most  of  which  was  situated  in  the 
state  of  Texas.  It  appeared  that  operating  conditions 
were  substantially  the  same  throughout  the  entire  line 
and  in  both  directions  between  these  two  cities.  The 
question  presented  to  the  Supreme  Court  was,  therefore, 
whether  such  a  rate  situation  would  constitute  undue 
l)rejudice  to  Shreveport  and  undue  preference  to  Dallas 
within  the  meaning  of  the  third  section  of  the  Act. 
"Here,  the  Commission  expressly  found,"  said  Mr.  Jus- 
tice Hughes,  "that  unjust  discrimination  existed  under 
substantially  similar  conditions  of  transportation  and 
the  inquiry  is  whether  the  Commission  had  power  to 
correct  it.  We  are  of. the  opinion  that  the  limitation  of 
the  proviso  in  section  one  does  not  apply  to  a  case  of 
this  sort.  The  Commission  was  dealing  with  the  re- 
lation of  rates  injuriously  affecting,  through  an  un- 
reasonable   discrimination,    traffic    that    was    interstate. 

"The  question  was  thus  not  simply  one  of  trans- 
])ortation  that  was  'wholly  within  one  State.'  These 
words  of  the  proviso  have  appropriate  reference  to  ex- 
clusively intrastate  traffic,  separately  considered;  to  the 
regulation  of  domestic  commerce,  as  such.  The  powers 
conferred  by  the  act  are  not  thereby  limited  where  inter- 
state commerce  itself  is  involved.  This  is  plainly  the 
case  when  the  Commission  finds  that  unjust  discrim- 
ination against  interstate  trade  arises  from  the  relation 
of  intrastate  to  interstate  rates  as  maintained  by  a  car- 
rier subject  to  the  act.  Such  a  matter  is  one  with  which 
Congress  alone  is  competent  to  deal,  and,  in  view  of  the 
aim  of  the  act  and  the  comprehensive  terms  of  the  provi- 
sions against  unjust  discrimination,  there  is  no  ground 
for  holding  that  the  authority  of  Congress  was  unexer- 
cised and  that  the  subject  was  thus  left  without  govern- 
mental regulation. 


378  Duties  to  Interstate  Shippers.  {}l  200 

'*It  is  urged  that  tlie  practical  construction  of  the 
statute  has  been  tlie  other  way.  But,  in  assailing  tlie 
order,  tlie  appellants  ask  us  to  override  the  construc- 
tion which  has  been  given  to  the  statute  by  tlie  authori- 
ty chai'ged  with  its  execution,  and  it  cannot  be  said 
that  the  earlier  action  of  llie  Commission  was  of  such  a 
controlling  character  as  to  ]u-eclude  it  from  giving  effect 
to  the  law.  The  Commission,  having  before  it  a  ])lain 
case  of  unreasonable  discrimination  on  the  part  of 
interstate  carriers  against  interstate  trade,  carefully 
examined  the  question  of  its  authority  and  decided  that 
it  had  the  power  to  make  this  remedial  order.  The  Com- 
merce Court  sustained  the  authority  of  the  Commission 
and  it  is  clear  that  we  should  not  reverse  the  decree  un- 
less the  law  has  been  misapplied.  This  we  cannot  say; 
on  the  contrary,  we  are  convinced  that  llie  authority  of 
the  Commission  was  adequate."' 

§  201.  Every  City  and  Locality  Entitled  to  Bene- 
fit of  Natural  Advantages.  Carriers  are  neither  required 
nor  permitted  to  undertake  by  a'djustment  of  rates  or 
otherwise  to  impair  or  neutralize  the  natural  commer- 
cial advantages  resulting  from  location  or  other  favor- 
able condition  of  one  territory  in  order  to  put  another 
territory  on  an  equal  footing  with  it  in  a  common  mark- 
et.^   Each  locality  is  entitled  to  the  benefit  of  its  natural 

7.  An  order  of  the  Interstate  42,  56  L.  Ed.  83,  32  Sup.  Ct.  22; 
Commerce  Commission  compelling  Blodgett-Milling  Co.  v.  Chicago,  M. 
carriers  to  remove  discrimination  &  St.  P.  Ry.,  23  I.  C.  C.  448;  Red 
against  interstate  commerce  by  River  Oil  Co.  v.  Texas  &  P.  Ry., 
raising  intrastate  fares  and  rates,  23  I.  C.  C.  438;  Sioux  City  Termi- 
must  be  definite  as  to  the  territory  nal  Elevator  Co.  v.  Chicago,  M.  & 
or  points  to  which  it  applies  and  St.  P.  Ry.,  2.'!  I.  C.  C.  98;  In  re 
must  conform  to  a  high  standard  Meat  Rates,  22  I.  C.  C.  160;  Elk 
of  certainty.  American  Exj).  Co.  Cement  &  Lime  Co.  v.  Baltimore  & 
V  State  ex  rel.  Caldwell,  244  U.  0.  R.  R.,  22  I.  C.  C.  84;  Carstens 
S.  617,  61  L.  Ed.  1352,  37  Sup.  Ct.  Packing  Co.  v.  Northern  P.  Ry., 
656;  Illinois  Cent.  R.  Co.  v.  Pub-  22  I.  C.  C.  77;  East  St.  Louis  Cot- 
lie    Utilities    Commission,    245    U.  ton   Oil   Co.   v.   St.   Louis   &   S.   F. 

'  S.  493,  62  L.  Ed.  ,  38  Sup.  Ct.  R.  R.,  20  I.  C.  C.  37:   Freight  Bu- 

204.  reau  of  Cincinnati  v.  Cincinnati,  N. 

8.  Interstate  Commerce  Com-  O.  &  T.  P.  Ry.,  6  I.  C.  C.  195,  4  I. 
mission  v.  Diffenbaugh,  222  U.  S  C.   R.   592;     Raworth   v.  Northern 


§  20-2  1 


I'kei'khknces  Ijktwkkn   Localities. 


379 


advantages,"  and  if  this  results  in  prejudice  to  one  and 
an  advantage  to  another,  it  is  not  an  undue  prejudice 
forbidden  by  the  statute.  It  is  not  the  duty  of  the  Com- 
mission to  equalize  natural  advantages  between  locali- 
ties through  the  adjustment  of  tariff  rates.'"  A  dis- 
advantage in  location  is  a  burden  which  in  the  very 
nature  of  things  the  merchants  and  s;liippers  of  a  com- 
munity must  always  bear.'^ 

§  202.  Rates  to  One  Locality  I'cr  Sr  Reasonable, 
Unlawful  if  Another  Locality  is  Prejudiced  Thereby. 
If  rates  are  relatively  unjust,  so  that  an  undue  preference 
accrues  under  them  to  one  locality,  and  an  undue  preju- 
dice results  to  another  locality,  the  law  is  violated 
although  the  higher  rates  are  not  in  themselves  un- 
reasonable.    The  fact  that  rates  are  2^ei\  se  reasonable 


p.  R.  R.,  5  I.  C.  C.  234,  3  I.  C.  R. 
857;  James  &  Mayer  Buggy  Co.  v. 
Cincinnati,  N.  0.  &  T.  P.  Ry.,  4 
I.  C.  C.  744,  3  I.  C.  R.  682. 

9.  Douglass  &  Co.  v.  Illinois  C. 
R.  R.,  31  I.  C.  C.  587;  Page  Milling 
Co.  V.  Norfolk  &  W.  Ry.,  30  I.  C. 
C.  605;  Hormel  &  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.,  30  I.  C.  C.  98; 
Wichita  Business  Ass'n  v.  Atchi- 
son, T.  &  S.  F.  Ry.,  30  I.  C.  C 
15;  Curry  &  Whyte  Co.  v.  Duluth 
&  I.  R.  R.  R..  30  I.  C.  C.  1:  Hughes- 
Creek  Coal  Co.  V.  Kanawha  &  M 
Ry..  29  T.  C.  C.  671;  Atlanta 
Freight  Bureau  v.  Nashville,  C.  & 
St.  L.  Ry.,  29  I.  C.  C.  476;  In  re 
advances  Kansas-California  Flour 
Rates,  29  I.  C.  C.  459;  In  re  Ad- 
vances Lumber.  Arkansas  etc.,  to 
Iowa,  29  I.  C.  C.  1;  Mississippi 
River  Case.  28  I.  C.  C.  47;  Com- 
mercial Club  of  Duluth  V.  Balti- 
more &  O.  R.  R.,  27  I.  C.  C.  639; 
Board  of  Trade  of  Chicago  v.  Chi- 
cago &  A.  R.  R.,  27  I.  C.  C.  530; 
Topeka  Traffic  .\ss'n  v.  Alabama  & 
v.  Ry.,  27  I.  C.  C.  428;  In  re 
Wheat  and  Flour  Rates,  Missouri 
River-Illinois,  27  I.  C.  C.  286;  West 


Virginia  Rail  Co.   v.  Baltimore  & 

0.  R  R.,  26  I.  C.  C.  622;  National 
Refrigerator  &  Butchers'  Supply 
Co.  v.  St.  Louis,  I.  M.  &  S.  Ry.,  26 

1.  C.  C.  524;  Meridian  Fertilizer 
Factory  v.  Vicksburg,  S.  &  P.  Ry., 
26  I.  C.  C.  351;  Wichita  Falls  Sys- 
tem Joint  Coal  Rate  Cases,  26  I. 
C.  C.  215;  Greenbaum  Co.  v.  Ches- 
apeake &  O.  Ry.,  25  I.  C.  C.  352; 
Globe  Milling  Co.  v.  Chicago,  M. 
&  St.  P.  Ry..  24  I.  C.  C.  594. 

10.  Board  of  Trade  of  Kansas 
City,  Missouri  v.  St.  Louis  &  S. 
F.  R.  Co.,  32  I.  C.  C.  297;  Slider 
V  Southern  Ry.,  24  I.  C.  C,  312; 
Oklahoma  Portland  Cement  Co.  v. 
Missouri,  K.  &  T.  Ry.,  24  I.  C.  C. 
158;  In  re  Salt  Rates,  10  I.  C.  C. 
148. 

11.  San  Toy  Coal  Co.  v.  Akron, 
C.  &  Y.  Ry.,  34  I.  C.  C.  93;  North- 
ern Pine  I\Ifrs.  Ass'n.  v.  Chicago  & 
N.  W.  Ry.,  33  I.  C.  C.  360;  Lebanon 
Commercial  Club  v.  Louisville  & 
N.  R.  R.,  28  I.  C.  C.  301;  In  re 
Furniture  Rates  in  Northwest,  2(5 
I.  C.  C.  655;  Saginaw  Board  v. 
Grand  Trunk  Ry.,  17  I.  C.  C.  128. 


380 


Di'TTKS  TO  Interstate  Sitippehs. 


[§  202 


does  not  prove  that  they  may  not  be  llnla^Yful  on  other 
gToimd^J.  For  example,  the  Commisgion  fonnd  the  rates 
for  the  transportation  of  bitmninons  coal  in  car-loads 
from  Kanawha  and  New  River  Districts  in  West  Vir- 
ginia to  Culpeper  and  Manassas,  Va.  to  be  reasonable, 
but  on  comparison  witli  lower  rates  to  Alexandria,  Va., 
and  Wasliington,  D.  C,  the  rates  to  Culpeper  and  Manas- 
sas were  held  to  be   nndnly  discriminatory.^" 

§  203.  Basing  Point  System  of  Rate-Making  Legal 
but  Subject  to  Control  of  Commission.  The  system 
of  making  rates  upon  certain  basing  lines  or  points  is 
not  illegal. ^'^  Under  this  system,  rates  for  certain  sec- 
tions of  the  country  are  established  by  fixing  a  certain 
rate  to  the  basing  point  and  to  other  stations  in  the  same 
group  by  adding  the  local  rate  from  the  basing  point." 
Thus  the  rate  adjustment  between  the  east  and  the  west 
is  built  upon  basing  lines  at  the  Mississippi  River  and 
at  the  Missouri  River. 

The  Ohio  River  crossings  form  a  similar  basing  line 
on  traffic  to  and  from  the  south-east;  but  it  must  not 
be  assumed  that  a  basing  line  for  rates  may  be  estab- 
lished and  be  made  an  impassible  barrier  for  through 
rates,  or  that  cities  or  markets  located  at  or  on  such 
basing  lines  have  any  inviolable  possession  of,  or  hold 
upon  the  right  to  distribute  traffic  to  or  from  the  terri- 
tory lying  beyond. ^^ 


12.  Bennett  &  Son  v.  Chesapeake 
&  O.  R.  Co.,  S8  I.  C.  C.  310. 

13.  Interstate  Commerce  Com- 
mission V.  Clyde  S.  S.  Co.,  181  U. 
S.  29,  45  L.  Ed.  729,  21  Sup.  Ct. 
512;  Interstate  Commerce  Commis- 
sion V.  Alabama  Midland  R.  Co., 
168  U.  S.  144,  42  L.  Ed.  414,  18  Sup 
Ct.  45. 

14.  Appalachia  Lumber  Co.  v. 
Louisville  &  N.  R.  Co.,  25  L  C.  C. 
193;  Suffern  Grain  Co.  v.  Illinois 
Cent.  R.  Co.,  22  I.  C.  G.  178;  Colum- 
bia Grocery  Co.  v.  Louisville  &  N. 
R.  Co.,  18  I.  C.  C.  502;  Kansas 
City  Transp.  Bureau  v.  Atchison  T. 


&  S.  F.  Ry.  Co.,  15  I.  C.  C.  498; 
Randolph  Lumber  Co.  v.  Seaboard 
Air  Line  Ry.  Co.,  1.3  I.  C.  C.  601. 

15.  Greenbaum  Co.  v.  LouisviPe 
&  N.  R.  Co..  31  I.  C.  C.  699;  Ameri- 
can Coal  &  Supply  Co.  v.  Chicago 
&  N.  W.  R.  Co.,  30  I.  C.  C.  492; 
City  of  Montezuma,  Georgia,  v. 
Central  of  Georgia  Ry.  Co.,  28  L 
C  C.  280;  Taylor  Dry  Goods  Co.  v. 
Missouri  P.  Ry.  Co.,  28  I.  C.  C.  205; 
LaGrange  Chamber  of  Commeroe 
V.  Atlanta  &  W.  P.  R.  Co.,  28  I.  C. 
C.  178;  Board  of  Trade  of  Carroll- 
ton,  Georgia  v.  Central  of  Georgia 
Ry.  Co.,  28  I.  C.  C.  154;    Interior 


§20,'!]  PhKFKHKNCKS    [^KTWKKN    T.ftCAI.ITIKS.  381 

'V\\v  IJiiitod  States  Siipn-me  Court  lias  held  tliat 
rates  tixed  n])()n  l)asin<i^  ])oiiits  are  not  exempt  fioiii  r('<<u- 
lation  if  unreasonable  or  discriminatory.  An  order, 
therefore,  of  the  Interstate  Commerce  Commission  re- 
ducing the  class  rates  from  the  Atlantic  sea-i»orts  to 
cities  on  the  Missouri  River  by  reducing  that  part  of  the 
through  rate  which  applied  to  the  haul  between  the  Miss- 
issii)pi  and  Missouri  "Rivers  was  sustained,  and  the  court 
held  that  the  Commission  did  not  thereby  artificially 
divide  up  the  country  into  freight  zones  tributary  to 
given  trade  and  manufacturing  centers/"  "Let  us  see, 
therefore,"  said  the  Court,  "u])on  what  grounds  the  Com- 
mission proceeded.  The  Commission  is  accused  by  the 
railroad  companies  of  attempting  to  substitute  an  arti- 
ficial system  of  ratemaking  for  a  long-established  system, 
and  to  protect  or  foster  particular  localities  of  produc- 
tion and  distribution.  Certain  remarks  of  the  Commis- 
sion are  cited  to  support  the  charge.  We  think  the 
charge  puts  out  of  view  all  else  that  was  said  l)y  the 
Commission,  puts  out  of  view  the  comprehensive  con- 
sideration the  Commission  took  as  exhibited  in  the  ex- 
plicit declaration  made  after  quoting  the  local  class 
rates  between  the  rivers  in  cents  per  hundred  pounds, 
that  'these  are  the  rates  that  are  added  to  the  rates  up 
to  the  Mississippi  River  crossings  to  make  up  the  through 
rates  from  the  Atlantic  seaboard  to  the  Missouri  River 
cities.'  Are  these  rates,  as  so  used,  and  the  through  rates 
resulting  therefrom,  unwari'antably  high  or  unduly  dis- 
criminatory or  unjustly  prejudicial?  Can  they  be 
changed  without  doing  injustice  elsewhere? 

"We  think  the  charge  also  puts  out  of  view  the  dis- 
claimers of  such  purpose  in  the  answer  of  the  Commis- 
sion in  its  report  to  Congress,  and  its  insistence  that 
it  is  constrained  by  the  law  to  act  only  on  complaint  to 
it  and  that  it  is  open  at  all  times  to  be  appealed  to,  to 

Iowa  Cities  Case,  28   I.  C.  C.   64;  218  U.  S.  88,  54  L.  Ed.  946,  30  Sun. 

Spiegle  V.  Southern  Ry.  Co.,  25  I.  Ct.  651;  Interstate  Commerce  Com- 

C.  C.  71;   Klndel  v.  New  York,  N.  mission  v.  Chicago,  B.  &  Q.  R.  Co., 

H.  &  H.  R.  Co.,  15  I.  C.  C.  555.  218  U.  S.  113,  54  L.  Ed.  959,  30  Sup. 

16.    Interstate    Commerce    Com-  Ct.  660. 
mission  v.  Chicago  R.  I.  &  P.  R.  Co. 


382  Duties  to  Interstate  Shippees.  [§  203 

redress  the  grievances  any  shipper  or  locality  may  have. 
Xor  did  the  Commission  ignore  or  underestimate  the 
manner  in  which  the  lines  of  railroads  had  been  ex- 
tended or  the  sj'stem  of  rates  or  ratemaking  which  had 
resulted.  That  is  the  system  of  making  rates  upon  cer- 
tain basing  lines  or  points.  Eates  'break'  at  such  points, 
it  was  proved  as  a  result  of  building  independent  lines 
westward.  In  other  words,  lines  of  railroads  were  built 
to  certain  cities  from  the  East,  seeking  such  cities,  it 
may  be,  because  of  their  natural  situation  and  facilities, 
and  other  independent  lines  building  westward,  each 
line  fixing  its  own  rates  or  uniting  according  to  cir- 
cumstances in  joint  rates.  It  is  the  observance  of  such 
points  that  give  and  maintain,  as  we  understand  the 
contention  of  the  railroads,  to  certain  cities  'the  equal 
op]^ortunity  in  the  distribution  of  merchandise  with  the 
merchants  in  the  East,  and  with  the  merchants  to  the 
West  of  said  cities,  so  far  as  their  business  is  affected 
by  trade  rates.'  That  this  was  carefully  considered  is 
manifest,  for  the  Commission  resisted  the  argument 
which  was  made  against  basing  rates  on  such  points." 

§  204.  Discriminations  and  Preferences  Produced 
by  Competition  Between  Localities  not  Undue  or  Un- 
reasonable. Subject  to  the  limitation  of  Section  4  of 
the  Act,^'  that  no  carrier  shall  charge  a  higher  rate  for 
a  shorter  distance  than  for  a  longer  distance  over  the 
same  route  in  the  same  direction,  for  like  kind  of  prop- 
erty, without  the  authorization  of  the  Interstate  Com- 
merce Commission,  discriminations  and  preferences 
between  localities  produced  by  competition,  whether, 
by  water  or  by  railroad,  are  not  undue  or  unreasonable 
under  the  y)rovisions  of  Section  3;'^  though  com- 
petition between  shippers  when  the  provisions  of  Sec- 
tion 2  apply  thereto,  is  not  a  dissimilar  circumstance 

17.  Section  79,  supra.  sion,   181  U.   S.   1,   45   L.   Ed.   719, 

18.  Interstate  Commerce  Com  21  Sup.  Ct.  516;  Louisville  &  N.  R. 
mission  v.  Clyde  S.  S.  Co.  181  U.  S.  Co.  v.  Behlmer,  175  U.  S.  648,  44 
29,  45  L.  Ed.  729,  21  Sup.  Ct.  512;  L.  Ed.  .309,  20  Sup.  Ct.  209;  Inter- 
East  Tennessee,  V.  &  G.  Ry.  Co.  state  Commerce  Commission  v. 
V    Interstate    Commerce    Commis-  Alabama  Midland  R.  Co.,  168  U.  S. 


§  204] 


PrEFEKENCES     I>K'I'\V|;kN    T.OCAIJI  IKS. 


383 


justifying  a  different  rate  or  c  ha  roc.''-'  A  i)rerereuce 
in  rates  in  favor  of  a  competitive  locality,  is  not  "undue" 
within  tlie  meaiiiiio-  of  Section  3.  Carriers  may,  tliere- 
fore,  in  fixing  tlieir  own  rates  take  into  account  coni- 
])etition  witli  other  carriers  provided  only  that  the  com- 
l)etition  is  genuine  and  not   a  mei'e  pr(?tense.-'' 

Coni]i)etition  which  is  real  and  substantial  and  exer- 
cises a  potential  influence  on  rates  to  a  particular  point, 
brings  into  play  a  i)reference,  but  not  an  undue  prefer- 
ence arising  from  the  voluntary  and  wrongful  act  of  the 
carrier.'^  The  mere  fact  of  competition,  no  matter 
what  its  extent  or  character,  does  not  necessarily  re- 
lieve the  carrier  of  the  restraint  imposed  upon  it  by  the 
provisions  of  Section  3;"  but  competition  of  controlling 
force  cannot  be  ignored  by  the  Commission  in  determin- 
ing whether  an  advantage  in  rate  at  the  competitive 
l)oint  is  undue  or  is  only  chargeable  to  the  carrier  be- 
cause invohuitarily   made.-"     Ocean  comj>etition   is  also 


144,  42  L.  Ed.  414,  18  Sup.  Ct.  45; 
Texas  &  P.  R.  Co.  v.  Interstate 
Commerce  Commission,  162  U.  S. 
197,  40  L.  Ed.  940,  16  Sup.  Ct.  666; 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v. 
Interstate  Commerce  Commission, 
162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700;  Interstate  Commerce 
Commission  v.  Baltimore  &  O.  R. 
Co.,  145  U.  S.  263,  36  L.  Ed.  699, 
12  Sup.  Ct.  844;  Interstate  Com- 
merce Commission  v.  Cincinnati, 
P.  &  v.  R.  Co.,  124  Fed.  624;  In 
re  Class  and  Commodity  Rates  to 
Texas  v.  Missouri,  K.  &  T.  Ry.  Co., 
11   I.   C.  C.  238. 

19.  Wight  V.  United  States,  167 
U.  S.  512,  42  L.  Ed.  258,  17  Sup. 
Ct.    822. 

20.  Interstate  Commerce  Com- 
mission V.  Diffenbaugh,  222  U.  S. 
42,  56  L.  Ed.  83,  32  Sup.  Ct,  22; 
Interstate  Commerce  Commission 
V  Chicago  Great  Western  R.  Co., 
209  U.  S.  108,  52  L.  Ed.  705,  28  Sup. 
Ct.  493;  Interstate  Commerce 
Commission  v.  Detroit,  G.  H.  &  M. 


Ry.  Co.,  167  U.  S.  633,  42  L.  Ed. 
30G,  17  Sup.  Ct.  986;  Coke  Pro- 
ducers Ass'n  V.  Baltimore  &  0.  R. 
Co.,  27  I.  C.  C.  125;  Chamber  of 
Commerce  of  Newport  News  v. 
Southern  Ry.  Co.,  23  I.  C.  C.  345; 
Colorado  Coal  Traffic  Ass'n  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.,  18 
I  C.  C.  572;  Columbia  Grocery  Co. 
V.  Louisville  &  N.  R.  Co.,  18  I.  C. 
Q.  502;  Chamber  of  Commerce  of 
Chattanooga  v.  Southern  Ry.  Co., 
10  I.  C.  C.  111. 

21.  East  Tennessee,  V.  &  G.  Ry. 
Co.  V.  Interstate  Commerce  Com- 
mission, 181  U.  S.  1,  45  L.  Ed.  719. 
21  Sup.  Ct.  516. 

22.  Louisvile  &  N.  R.  Co.  v. 
Behlmer.  175  U.  S.  648.  44  L.  Ed. 
309,  20  Sup.  Ct.  209;  Chamber  of 
Commerce  of  Newport  News  v. 
Southern  Ry.  Co.,  23  I.  C.  C.  345: 
Planters'  Gin  and  Compress  Co.  v. 
Yazoo  &  M.  V.  R.  Co.,  16  I.  C.  C.  l-U. 

23.  Sioux  City  Terminal  Eleva- 
tor Co.  V.  Chicago.  M.  &  St.  P.  Ry. 
Co..   23   I.  C.  C.   98. 


384:  Duties  to  Interstate  Shippers.  [§  204 

a  circumstance  to  be  considered  in  determinino-  whether 
difTerences  in  rates  are  unduly  preferential."* 

§  205.  Limitation  Upon  Competition  in  Deter- 
mining Whether  Discrimination  is  Unjust  or  Preference 
Undue.  While  the  courts  and  the  Commission  in  the 
cases  cited  in  the  foregoing*  j^aragraph  clearly  held  that 
preferences  and  discriminations  produced  by  competition 
are  not  unjust  or  undue  within  the  meaning  of  Section 
3,  the  Supreme  Court  in  Louisville  &  N.  R.  Co.  v.  Behl- 
mer,"^  recognized  that  the  competitive  rule  is  subject  to 
tlie  important  qualifications  which  were  summarized  by 
the  court  as  follows: 

"It  follows  that  whilst  the  carrier  may  take  into 
consideration  the  existence  of  competition  as  the  produc- 
ing cause  of  dissimilar  circumstances  and  conditions, 
his  right  to  do  so  is  governed  by  the  following  prin- 
ciples; First.  The  absolute  command  of  the  statute  that 
all  rates  shall  be  just  and  reasonable,  and  that  no  undue 
discrimination  be  brought  about,  though,  in  the  nature 
of  things,  this  latter  consideration  may  in  many  cases 
be  involved  in  the  determination  of  whether  competi- 
tion was  such  as  created  i  substantial  dissimilarity  of 
condition.  Second.  That  the  competition  relied  upon 
be,  not  artificial  or  merely  conjectural,  but  material  and 
substantial,  thereby  operating  on  the  question  of  trafific 
and  rate-making  the  right  in  every  event  to  be  only 
enjoyed  with  a  due  regard  to  the  interest  of  the  public, 
after  giving  full  weight  to  the  benefits  to  be  conferred 
on  the  place  from  whence  the  traffic  moved  as  well  as 
those  to  be  derived  by  the  locality  to  which  it  is  to  be 
delivered." 

§  206.  Difference  in  Amount  of  Traffic  Between 
Localities  Similarly  Situated  no  Justification  for  Dis- 
criminatory Rates  and  Fares.     While  carriers  may  make 

24.    Texas  &  P.  Ry.  Co.  v.  Inter-       Pittsburgh,  C.  C.  &  St.  L.  Ry.  Co., 
state  Commerce  Commission,   162      18  I.  C.  C.  87. 

U.  S.  197,  40  L.  Ed.  940,  16  Sup.  Ct.  25.    Louisvile    &    N.    R.    Co.    v. 

666;   Pittsburgh  Plate  Glass  Co.  v.       Behlmer,  175  U.  S.  648,  44  L.  Ed. 

309,  20  Sup.  Ct.  209. 


i 


§  207]  Pkefeeknces  Between  Localitiks.  385 

lower  rates  to  eompetitive  points  than  are  made  to  inter- 
mediate noncompetitive  points,  they  are  not  at  liberty 
in  the  selection  of  these  basing:  points  to  determine  that 
one  town  shall  have  the  benefit  of  a  lower  rate  and  that 
another  town  shall  not,  when  the  means  of  competition 
and  the  snrroiuidin.i;-  conditions  do  not  materially  differ.^" 
A  difference  in  the  amount  of  passen,ii:er  traffic  be- 
tween two  cities  similarly  situated  will  not  justify  a 
difference  in  the  fares  between  tlic  two  points,  and,  sim- 
ilarly, the  fact  that  one  city  is  more  imi)ortant  from  a 
commercial  standpoint,  than  another,  does  not  entitle  it 
to  lower  rates.  For  example,  the  extension  of  terminal 
rates  to  Santa  Clara,  San  Jose  and  Marysville,  California, 
on  west-bound  trans-continental  traffic,  and  the  refusal 
to  extend  such  rates  to  Santa  Rosa,  a  city  similarly 
situated,  was  held  not  to  be  justified  because  the  amount 
of  traffic  to  Santa  Rosa  was  not  as  great  as  to  the  other 
cities.''  A  refusal  to  grant  excursion  fares  from  Toledo, 
Ohio,  to  Hamburg,  Michigan,  a  summer  resort,  while 
maintaining  and  granting  such  fares  from  Toledo  to 
Whitmore  Lake  and  Lakeland,  other  resorts  similarly 
situated,  constituted  an  unjust  discrimination,  and  the 
fact  that  Hamburg  was  not  as  popular  as  a  resort  as 
the  others  did  not  debar  it  from  equal  treatment  under 
the  law.=^« 

§  207.  Carrier  not  Guilty  of  Discrimination  Be- 
tween Localities  When  it  Does  not  Participate  in  Rates 
to  Favored  Point.  A  charge  of  discrimination  cannot 
be  sustained  by  a  locality  against  a  carrier  that  does  not 
serve  that  locality  either  directly  by  its  own  route  or 
by  joint  arrangement  with  other  railroads ;'"•  for  the 
pi'ohibition  of  Section  3  is  directed  against  unjust  dis- 
crimination or  undue  preference  arising  from  the  volun- 
tary act  of  the  carrier,  and  does  not  include  acts  that 
are  the  result  of  conditions  beyond  its  control.''" 

26.  Board  of  Trade  of  Dawson.  28.    Beach  v.  Ann  Arbor  R.  Co., 
Georgia,  v.  Central  of  Georgia  Ry.,       26  I.  C.  C.  410. 

8  I.  C.  C.  142.  29.    St.  Louis.  I.  M.  k  S.  Ry.  Co. 

27.  Santa  Rosa  Traffic  Ass'n  v.  v.  United  States,  217  Fed.  80. 
Southern  P.  Co.,  24  I.  C.  C.  46,  29  30.    East  Tennessee,  V.  &  G.  Ry. 
I.  C.  C.  65.  ^0.   V.   Interstate  Commerce  Com- 


1    Control    Carriers    lin 


386 


Duties  to  Interstate  Shippers. 


[§  207 


Upon  a  complaint  that  a  carrier  discriminated 
against  tlie  port  of  New  York  and  unduly  preferred 
the  port  of  Montreal,  it  appeared  in  evidence  that  the 
carrier  had  no  voice  in  making  rates  to  Montreal  and 
did  not  participate  in  the  movement  of  the  commodity 
involved  to  that  port,  and  hence,  the  Commission  lield, 
there  was  no  undue  discrimination  as  there  was  no 
participation  by  the  carrier  directly  or  indirectly  in 
the  establishment  of  the  rate  to  Montreal. ^^  The  test 
of  discrimination  is  the  ability  of  one  of  the  carriers 
participating  in  two  through  routes  to  put  an  end  to 
the  discrimination  by  its  own  act.^- 

§  208.  Discrimination  Between  Different  Coal 
Fields  Served  by  Different  Carriers  not  Unlawful.     The 

provisions  of  Section  3  condemning  discriminations 
and  preferences  between  localities  apply  to  different 
rates  by  one  road  or  set  of  roads  serving  two  competing 
points,  but  a  discrimination  resulting  from  rates  be- 
tween two  different  coal  fields  served  by  different  groups 
of  lines,  does  not  fall  within  the  condemnation  of  the 
statute.^^ 


mission,  39  C.  C.  A.  413,  99  Fed. 
52;  Partridge  &  Sons  Co.  v.  Penn- 
sylvania R.  Co.,  26  I.  C.  C.  484; 
East  Tennessee,  V.  &  G.  Ry.  Co. 
V.  Interstate  Commerce  Commis- 
sion. 181  U.  S.  1,  45,  L.  Ed.  719. 
21  Sup.  Ct.  516,  in  which  Mr. 
Chief  Justice  White  said:  "The 
prohibition  of  the  third  section, 
when  that  section  is  considered  in 
its  proper  relation,  is  directed 
against  unjust  discrimination  or 
undue  preference  arising  from  the 
voluntary  and  wrongful  act  of  the 
carriers  complained  of  as  having 
given  undue  preference,  and  does 
not  relate  to  acts  the  result  of  con- 
ditions wholly  beyond  the  control 
of  such  carriers.  And  special  at- 
tention was  directed  to  this  view 
in  the  Behlmer  case,  in  the  passage 
which  we  have  previously  ex- 
cerpted.     To    otherwise    construe 


the  statute  would  involve  a  de- 
parture from  plain  language,  and 
would  be  to  confound  cause  with 
effect." 

31.  New  York  Produce  Exchange 
v.  New  York  Cent.  &  H.  River  R. 
Co.,  32  I.  C.  C.  212. 

32.  In  re  Grain,  St.  Louis  & 
East  St.  Louis,  30  I.  C.  C.  696; 
Coke  Producers  Ass'n  of  Connells- 
ville  Region  v.  Baltimore  &  O.  R. 
Co.,  27  I.  C.  C.  125;  Ashland  Fire 
Brick  Co.  v.  Southern  Ry.  Co.,  22 
I.  C.   C.   115. 

33.  Wickwire  Steel  Co.  v.  New 
York  Cent.  &  H.  River  R.  Co.,  30 
I.  C.  C.  415;  In  re  advances  Cali- 
fornia-Nevada Lumber  Rates,  28  I. 
C.  C.  313;  In  re  Coal  Rates  to 
Davenport,  Iowa,  26  I.  C.  C.  140; 
In  re  Coal  Rates  on  Chesapeake  & 
O.  Ry.  Co.,  22  I.  C.  C.  604. 


<§>  210]  Preferknces  Bktwkkn   Locaijtiks.  387 

§  209.  Discrimination  in  the  Establishment  and 
Maintenance  of  Group  Rates.  The  ('oininissioii  lias 
often  considered  and  passed  upon  the  propriety  of  group 
rates.  While  tlie  grouj)  or  zone  priiK'i])le  is  often  of 
mutual  advantage  to  shippers  and  carriers  and  will  not 
ordinarily  be  disturbed  if  the  rates  are  reasonable  and 
non-diseriiiiiiiatory,  yet  the  relative  situation  of  con- 
tiguous i)oints  cannot  be  wholly  disregarded  in  rate 
making  without  incurring  the  risk  of  creating  unjust 
discrimination  or  advantage  to  the  favored  points."** 

In  the  application  of  group  rates  a  discrimination 
of  necessity  arises  between  the  near  and  far  edge  of 
the  group,  but  the  Commission  has  generally  held  that 
this  discrimination  is  not  undue.^^  There  must  be  some 
point,  liowever,  at  which  the  extension  or  application  of 
the  rate  must  stop,  and  whether  this  extension  consti- 
tutes undue  or  unjust  discrimination  must  1)p  dctorTiiincd 
from  all  the  facts  of  each  case.''' 

§  210.  Different  Rates  in  Opposite  Directions  Over 
Same  Lines  Not  Discriminatory.  The  fact  that  rates 
or  fares  over  a  line  in  one  direction  between  two  points 
are  materially  higher  than  the  rates  or  fares  in  an  op- 
posite direction  does  not  establish  unjust  discrimination; 
for  all  the  surrounding  facts  and  circumstances  must 
be  taken  into  consideration  to  determine  whether  the 
discrimination  is  undue. 

Dil^erences  in  grades,  a  preponderating  movement 
of  empty  cars  in  one  direction,  a  greater  volume  of 
freight  in  one  direction  than  the  other  and  other  con- 
ditions may  justify  a  difference  in  rates  over  the  same 
line  between  the   same  points."     For  example,   a   rate 

34.  Hammerschmidt  &  Franzen  30  I.  C.  C.  71;  Muskogee  Traffic 
Co.  V.  Chicago  &  N.  W.  Ry.  Co.,  30  Bureau  v.  Atchison,  T.  &  S.  F. 
I.  C.  C.  71;  Bovaird  Supply  Co.  v.  Ry.,  17  I.  C.  C.  169;  Mitchell  v 
Atchison,  T.  &  S.  F.  Ry.,  13  I.  C.  Atchison,  T.  &  S.  F.  Ry.,  12  I.  C 
C.  56.  C.     324;     Desel-Boettcher     Co.     v 

35.  Southwestern  Missouri  Mil-  Kansas  City  S.  Ry.  Co.,  12  I.  C.  C 
lers'  Club  v.  Missouri,  K.  &  T.  Ry.,  220;  Imperial  Coal  Co.  v,  Pitts 
22  I.  C.  C.  422.  burgh  &  L.  E.  R.  Co.,  2  I.  C.  C.  618 

36.  Hammerschmidt  &  Franzen  37.  Interstate  Commerce  Com 
Co.  V.  Chicago  &  N.   W.  Ry.  Co.,  mission  v.  Louisville  &  N.  R.  Co., 


388  Duties  to  Interstate  Shippees.  [§  210 

of  sixty-two  cents  per  Inmdred  pounds  on  freig'ht  west- 
bound between  Philadeli)hia,  Fn.,  and  Fort  Wayne,  Ind. 
in  comparison  with  a  rate  of  forty-three  cents  per  hun- 
dred ponnds  east-bonnd  was  held  not  to  be  an  unreason- 
able discrimination.''-  A  charge  of  $2.00  more  for  a 
passenger  ticket  from  Boston,  Me.,  to  Janesville,  Wis., 
than  for  a  ticket  from  Janesville,  to  Boston  was  not  an 
unjust  discrimination.^^  In  another  case,  the  Commis- 
sion held  that  rates  on  certain  commodities  from  Seat- 
tle and  Tacoma,  Wash.,  to  Portland,  Ore.,  were  not  un- 
justly discriminatory  as  compared  with  the  rates  from 
Lime  and  Gypsum,  Ore.,  to  Portland,  and  Puget  Sound 
points,  but  the  existence  of  rates  east-bound  in  some 
instances  twice  as  high  as  those  for  substantially  the 
same  distance  west-bound  was  found  not  to  be  justified.*'' 

§  211.      Discrimination    in    Absorbing    Switching 
Charges  at  One  Point  and  Refusing  at  Another.     The 

practice  of  absorbing  or  refusing  to  absorb  switching 
charges  must  not  only  be  reasonable  but  non-discrim- 
inatory.*^ In  cases  where  the  traffic  moves  from  the 
same  points  of  origin  and  the  switching  charge  is  ab- 
sorbed in  the  one  case  and  not  in  the  other,  there  is  a 
violation  of  Section  2,  and  the  existence  or  absence  of 
competition  in  one  or  the  other,  does  not  constitute  a 
substantial  dissimilarity  of  circumstances.  Even  as 
to  traffic  moving  from  different  points  of  origin,  to  which 
Section  3  may  be  applicable,  competitive  conditions  are 

118   Fed.    613;    Pacific   Coast   Gyp-  T.  &  S.  P.  Ry.  Co.,  6  I.  C.  C.  85, 

sum  Co.  V.  Oregon  Washington  R.  4  I.  C.  R.  385. 

R.    &   Nav.    Co.,   30    I.    C.    C.    135;  38.    Weil   Bros.   &   Co.    v.    Penn- 

HuU  Vehicle  Co.  v.  Southern  Ry.  sylvania  R.  Co.  11  I.  C.  C.  627. 

Co.,  28  I.  C.  C.  619;  Wilburine  Oil  39.    MacLoon  v.  Boston  &  M.  R. 

Works  V.  Pennsylvania  R.  Co.  18  Co..  9  I.  C.  C.  642. 

I.   C.   C.   548;    Littell  v.   St.  Louis  40.    Pacific  Coast  Gypsum  Co.  v. 

S.   W.    Ry.    Co.,    18    I.    C.    C.    187;  Oregon-Washington   R.   R.  &  Nav. 

Phillips   Co.    V.    Grand   Trunk   W.  Co.,  30  I.  C.  C.  135. 

Ry.  Co.,  11  I.  C.  C.  659;  Weil  Bros.  41.    Board  of  Trade  of  Chicago, 

&  Co.  V.  Pennsylvania  R.   Co.,   11  Illinois  v.  Atchison.  T.  &  S.  F.  Ry. 

I.  C.  C.  627;  Hewins  v.  New  York.  Co.,  29  I.  C.  C.  438;  In  re  Advances 

N.  H.  &  H.  R.  Co.,  10  I.  C.  C.  221;  Switching,  Chicago,  minois,  28  I. 

MacLoon  v.  Boston  &  M.  R.  Co.,  9  C.  C.  677;    In  re  Advances  on  Ice, 

I    C.  C.  642;    Duncan  v.  Atchison,  24  I.  C.  C.  660. 


§  212]  Preferences  Between  Localities.  389 

not  always  control  I  in,i2:  in  <l('t<'nniiiin,i!:  tlic  existence  of 
dissiiiiilar  conditions/- 

Applying  these  rules,  the  Commission,  in  the  case 
cited,  held  tliat  tlie  imi^osition  of  switching  charges  on 
interstate  carload  freight  at  Richmond,  Va.,  while  at 
the  same  time  no  charge  of  a  like  character  was  imposed 
at  Norfolk,  Va.,  on  the  same  traffic,  constituted  undue 
discrimination  against  consignees  and  consignors  of 
freight  at  Richmond."'  But  the  failure  of  railroad  com- 
panies with  terminals  at  Chicago  to  ahsorb  charges  on 
grain  delivered  to  industries  in  that  city  off  of  their 
lines  while  absorbing  such  charges  on  other  commodities 
having  no  competitive  relation  therewith,  did  not  consti- 
tute an  undue  preference." 

§  212.  Discrimination  Through  Joint  Rates  Between 
Two  Localities  Similarly  Situated  Prohibited,  When. 
An  undue  discrimination  against  one  locality  may  be 
effected  as  well  by  a  joint  rate  as  by  a  one-line  rate, 
and  a  carrier  tliat  is  a  party  to  a  joint  rate  is  no  less 
responsible  when  the  undue  discrimination  under  such 
a  rate  can  be  controlled  by  it,  than  it  would  be  under 
similar  circumstances  under  its  own  one-line  rate.*^ 
If  any  carrier  participates  in  a  joint  rate  over  the  terri- 
tory affected,  and  is  in  such  position  that  it  may  join 
in  such  rates  or  decline  to  do  so,  it  is  then  liable  for  the 
discrimination  which  may  result  from  its  action  in  join- 

42.  Chamber  of  Commerce  of  29  I.  C.  438;  See  also  Board  of 
Richmond,  Virginia,  v.  Seaboard  Trade  of  Chicago  v.  Chicago  &  A. 
Air  Line  Ry.,  31  I.  C.  C.  552.  R.   R.,  27  I.  C.  C.  530;    Wholesale 

43.  The  Commission  based  its  Fruit  &  Produce  Ass'n  v.  Atchi- 
ruling  on  its  former  decisions  in  ^^^^  rp  ^  g  p  ^^ ^  ^r,  j  ^  ^ 
the  following  cases:  Duncan  &  Co.  ^^g.  j^jj^^j,  ^  ^^^^  york.  N.  H.  & 
V  Nashville,  C.  &  St.  L.  Ry..  a  ^  j^  ^  ^^  j  ^  ^  4„2;  Railroad 
I.  C.  C.  186;  Cattle  Raisers'  Ass'n 
of  Texas  v.  Chicago,  B.  &  Q.  R.  R- 

12    I.   C.   C.   507;    City   Council   of 

_,.  Tvi:oo^„^i    D     R^r      19  45.    Patridge  &  Sons  Co.  V.  Penn- 

Atchison    V.    IMissourl    P.    Ky.,    i^ 

J    (^    (^    jjj  sylvania   R.    R.,   26    I.    C.    C.    484; 

44.  Board  of  Trade  of  Chicago.  Rates  from  Wallensburg  Coal 
Illinois  V.  Atchison.  T.  &  S.  F.  Ry..      Field.  26  I.  C.  C.  85. 


Commission  of  Kentucky  v.  Louis- 
ville &  N.  R.  R.,  10  L  C.  C.  173. 


390  Duties  to  Init.rstatk  Shippkks.  [§212 

ing"  witli  tlio  otlior  earriors  iti   tlio  rlisenininatory  rate 
or  re^'nlation.**"' 

Bnt  this  principle  has  no  application  nnless  Iho 
traffic  from  both  ,2:ron]is  of  origin  is  necessarily  trans- 
ported to  destination  by  the  same  connecting  carrier 
or  carriers,  and  where  it  is  possible  for  the  carrier  to 
pnt  an  end  to  the  discrimination  by  the  exercise  of 
its  power  to  refuse  to  enter  into  preferential  joint  or 
proportional  rates.*^  The  test  of  discrimination  is  the 
ability  of  one  of  the  carriers  participating  in  the  two 
through  routes  to  put  an  end  to  the  discrimination  by 
its  own  act/^ 

§  213.  Differentials  Between  Atlantic  Coast  Cities 
Legitimately  Based  upon  Competitive  Relations.  Rail- 
way companies  are  not  prohibited  by  the  third  section 
from  preferring  one  locality  to  another  unless  that 
preference  amounts  to  an  undue  or  unreasonable  one. 
A  preference,  without  a  legitimate  excuse,  would  be 
in  and  of  itself  undue  and  unreasonable.  But  the  Com- 
mission has  often  held  that  the  differentials  between 
Boston,  New  York,  Philadelphia  and  Baltimore  are 
legitimately  based  upon  the  competitive  conditions  be- 
tween the  various  carriers  serving  these  ports.*^ 

46.  In  re  Grain,  St.  Louis  and  ville  region  v.  Baltimore  &  O.  R. 
East  St.  Louis,  30  I.  C.  C.  696;  R.,  27  I.  C.  C.  125;  Ashland  Fire 
Memphis  Freight  Bureau,  28  I.  C.  Brick  Co.  v.  Southern  Ry.,  22  I.  C. 
C.  543;  Coke  Producers'  Ass'n  of  C.  115;  Indianapolis  Freight 
Connellsville  region  v.  Baltimore  Bureau  v.  Cleveland,  C.  C.  &  St. 
&  O.  R.  R.,  27  I.  C.  C.  125:     Scott  L.  Ry.,  16  I.  C.  C.  56. 

Paper  Co.  v.  Pennsylvania  R.  R.,  48.      Hughes  Creek  Coal  Co.  v. 

26  I.  C.  C.  601;  Ashland  Fire  Brick  Kanawha  &  M.  Ry.,  29  I.  C.  C.  671; 

Co.   V.    Southern   Ry.,    26   I.   C.    C.  Coke  Producer's  Ass'n  of  Connells- 

195,   22   I.   C.  C.   115;    Rates   from  ville  region  v.  Baltimore  &  O.  R. 

Wallensburg  Coal  Field,  26  I.  C.  C.  R.,  27  I.  C.  C.  125. 

85;  Southern  Furniture  Mfg.  Ass'n  49.    In  re  Import  Rates,  27  I.  C. 

v.  Southern  Ry.,  25  I.  C.  C.  379;  C.  245;   Chamber  of  Commerce  of 

Indiana  Steel  &  Wire  Co.  v.  Chi-  New  York  v.  New  York  Cent.  &  H. 

cago,  R.   I.   &  P.   Ry.,   16   I.   C.   C.  River    R.    Co.,    27    I.    C.    C.    238; 

155.  Chamber    of    Commerce    of    New 

47.  Tn  re  Grain,  St.  Louis  and  York  v.  New  York  Cent.  &  H.  River 
East  St.  Louis.  30  I.  C.  C.  096;  R.  Co.,  24  I.  C.  C.  674,  24  I.  C.  C. 
Coke  Producers'  Ass'n  of  Connells-  55;  In  re  Import  Rates.  24  I.  C.  3. 


§    2]'.V\  I'liKKKRENCES    I  >K'I\V  HEX    T.()(  AMTIES.  .391 

In  the  case  of  Cliaml)er  of  Commerce  of  the  State 
of  New  York  v.  New  York  Cent.  &  H.  River  R.  Co.,'''* 
comi)hiinants,  mercliants  of  New  York  City,  allep^ed  that 
the  carriers  maintained  rates,  differentials  and  charj<es 
to  and  from  the  city  and  port  of  New  York  on  import 
and  export  traffic  having  destination  or  origin  in  so- 
called  "differential  territory,"  tliat  is,  territory  bound- 
ed on  the  noith  by  the  Great  Lakes  and  a  line  drawn 
west  from  Chi(*aii,o,  111.,  to  Diil)U(|ue,  la.,  and  on  the  cast 
by  a  line  drawn  from  l^ittsbnrii-,  Pa.,  to  Buffalo,  New 
York,  on  the  south  by  the  Ohio  River  and  on  the  west 
by  the  Mississippi  River,  wliicli  were  unjustly  discrim- 
inatory a.i^ainst  New  York  and  unduly  preferential  to 
Boston,  Philadelphia  and  Baltimore.  Taking  Chicaico 
as  a  representative  point,  it  appeared  in  evidence  that 
the  all-rail  and  lake-and-rail  rates  on  expoi't  and  do- 
mestic traffic  were  lower  to  Philadelphia  and  Baltimore 
than  to  New  York,  but  the  export  rate  from  New  York 
and  Boston  was  the  same.  The  Commission  held  that 
the  carriers  should  maintain  to  these  ports  throu.^h 
routes  and  joint  rates  so  that  there  might  be  the  freest 
movement  of  traffic  without  the  necessity  of  reshipment, 
and  that  the  carriers  serving  New  York  might  partici- 
pate in  the  movement  of  traffic  to  and  from  Philadeli)liia 
and  Baltimore  under  competitive  rates  while  maintain- 
ing at  the  same  time  higher  rates  to  and  from  New  York. 

The  Commission  therefore  held  that  differentials 
under  New  York  on  all-rail  and  lake-and-rail  export 
shi])ments  from  differential  territory  to  Baltimore  should 
not  exceed  8  cents  per  hundred  pounds,  and  to  Philadel- 
phia should  not  exceed  2  cents  per  hundred  pounds  on  the 
classes  of  the  commodities  other  than  grain,  flour  and 
iron  articles,  and  that  the  differentials  under  New  York 

78,  24  I.  C.  C.  678;   In  the  Matter  50.    Chamber  of  Commerce  of  the 

of  Differential  Freight  Rates,  11  I.  State  of  New   York  v.  New   Yor!: 

C.  C.  13;  Toledo  Produce  Exchange  Cent.  &  H.  River  R.  Co.,  24  I.  C.  C. 

V.  Lake  Shore  &  M.  S.  Ry.  Co.,  5  55.  24  I.  C.  C.  674,  27  I.  C.  C.  238. 

I    C.  C.  166,  3  I.  C.  R.  830;  Cham-  See   also   companion    case:    In    re 

her  of  Commerce  of  Boston  v.  Lake  Import   Rates,   24   I.   C.   C.   78,   24 

Shore  &  M.  C.  Ry.  Co.,  1  I.  C.  C.  I.  C.  C.  678,  27  I.  C.  C.  245. 
4:16,  1  T.  C.  R.  756. 


392  Duties  to  Interstate  Shippers.  [§  213 

on  all-rail  and  lake-and-rail  sliipments  of  grain  shonld 
not  exceed  1.5  cents  y>qv  hundred  pounds  to  Baltimore 
and  1  cent  to  Philadelphia,  and  that  the  differential 
under  New  York  on  all-rail  and  lake-and-rail  export 
sliipments  of  flour  shonld  not  exceed  2  cents  per  hundred 
pounds  to  Baltimore  and  1  cent  per  hundred  pounds  to 
Philadelphia,  and  that  as  to  all  such  traffic,  the  export 
rates  to  and  the  import  rates  from  Boston  should  not 
be  lower  than  the  rates  to  and  from  New  York. 

§  214.  Maintaining-  Higher  Rates  on  Branch  Line 
Parallel  to  Main  Line  Serving  Same  Territory.  A  rail- 
road company  operating  two  parallel  lines  of  railroad 
serving  the  same  territory,  one  a  main  line  and  the  other 
a  branch,  is  justitied  in  maintaining  rates  not  shown  to 
be  unreasonable  per  se  on  the  branch  line  while  main- 
taining materially  lower  rates  on  the  main  line  for  like 
distances  to  meet  cross-country  competition  of  an  inde- 
pendent parallel  line.  For  example,  the  rates  on  cattle 
and  hogs  from  cities  in  Nebraska  on  the  Holdrege- 
Cheyenne  branch  of  the  Chicago,  Burlington  &  Quincy 
Railroad  to  St.  Joseph,  Missouri,  were  found  to  be 
higher  than  rates  from  the  cross-country  cities  situated 
on  the  main  line  of  the  same  company.  It  appeared  that 
the  rates  on  the  main  line  were  lower  because  of  cross- 
country competition  of  the  Rock  Island  and  Union  Pacitic 
railroad  companies.  The  Commission  held  that  the 
carrier  was  justified  in  maintaining  lower  rates  on  the 
main  line  because  of  the  competition  with  the  other 
independent  railroads." 

§  215.  Proportional  Part  of  Through  Rate  Lower 
Than  Local  Rates  Between  Same  Points  Not  Discrim- 
inatory. In  the  absence  of  a  justifying  explanation,  a 
through  rate  in  excess  of  the  sum  of  the  locals,  applica- 
ble to  the  same  traffic,  over  the  same  route,  is  an  un- 
reasonable rate."     In  fact,  as  a  rule,  the  through  rate 

51.    Nebraska      State      Railway  Compress  Co.  v.  Yazoo  &  M.  V.  R. 

Commission  v.  Chicago,  B.  &  Q.  R.  C,  16  I.  C.  C.  131. 

Co.,   36   I.   C.   C.   218,   following   a  52.    Winona     Carriage     Co.     v. 

similar  ruling  in  Planters'  Gin  &  Pennsylvania   R.    Co.,   18    I.   C.   C. 


§  1M(5| 


Pheferkncp:s   P>K'j\vi:r,x  Locautiks. 


393 


should  be  less  tliaii  tlio  sum  of  tlic  local  iat<'.'"'  A  car- 
rier may,  tlierefoic,  accc])!  and  receive  a  smaller  sum 
for  its  ])roi)ortioii  of  a  tlirouj;li  rate  than  the  charges 
for  llic  transportation  of  the  same  comnio(li1>'  ])etween 
the  same  ])oints.''^  ^Tho.  conditions  and  circumstances 
attendin<>:  the  transportation  of  through  traflic  are  dis- 
similar from  those  affecting  purely  local  tiaffic,  and 
hence  a  difference  in  the  rales  between  local  and  through 
traflic  is  not  an  undue  discrirnination.'"'' 

§  216.  Rebilling  and  Reshipping  Privilege  at 
Nashville  on  Grain  From  Ohio  River  to  South  Eastern 
Points  Discriminatory.  The  ])ractice  of  carriers  in 
granting  a  rebilling  or  reshipping  privilege  on  ship- 
ments of  grain  and  grain  products  at  Nashville,  Tenn., 
when  transi)orted  from  the  Ohio  and  Mississippi  River 
crossings  to  south  eastern  points  in  Georgia  and  adjoin- 
ing states,  while  denying  the  same  privilege  at  Atlanta 


334;  Milburn  Wagon  Co.  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  18  I.  C.  C. 
144;  White  Bros.  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  17  I.  C.  C.  288; 
Kindel  v.  New  York,  N.  H.  &  H. 
R.  Co..  15  I.  C.  C.  555:  Laning- 
Harris  Coal  &  Grain  Co.  v.  St. 
Louis  &  S.  F.  R.  Co.,  13  L  C.  C. 
148. 

53.  Washington  Milling  Co.  v. 
Norfolk  &  W.  Ry.  Co.,  27  L  C.  C. 
546;  Lumbermen's  Exch.  of  St. 
Louis  V.  Anderson  &  S.  R.  R.  Co  . 
24  I.  C.  C.  220;  Bluefield  Shippers' 
Ass'n  V.  Norfolk  &  \V.  Ry.  Co.,  22 
L  C.  C.  519;  Railroad  Commission 
of  Nevada  v.  Nevada-California- 
Oregon  Ry.  Co..  22  L  C.  C.  20^; 
Montgomery  Freight  Bureau  v. 
Western  Ry.  of  Alabama,  14  L  C. 
C.  150;  Coffeyville  Vitrified  Brick 
&  Tile  Co.  V.  St  Louis  &  S.  F.  R. 
Co..  12  1.  C.  C.  498:  Hilton  Lumb-r 
Co.  v.  Wilmington  &  W.  R.  Co.,  9 
L  C.  C.  17:  Railroad  &  Warehouse 
Commission  of  Missouri  v.  Eureka 
Springs  Ry.  Co.,  7  I.  C.  C.  69. 


54.  Parsons  v.  Chicago  &  N.  W. 
Ry.  Co.,  11  C.  C.  A.  489,  63  Fed. 
903;  New  Pittsburgh  Coal  Co.  v. 
Hocking  Valley  Ry.  Co.,  26  I.  C. 
C.  121;  Board  of  Trade  of  Wichita 
v  Atchison.  T.  &  S.  F.  R.  Co.,  25 
L  C.  C.  625;  Southwestern  Ship- 
pers' Traffic  Ass'n  v.  Atchison^  T. 
&  S.  F.  Co.,  24  L  C.  C.  570;  South- 
ern Illinois  Millers'  Ass'n  v.  Louis- 
ville &  X.  R.  Co.,  23  1.  C.  C.  672: 
Ottumwa  Commercial  Ass'n  v.  Chi- 
cago, B.  &  W.  R.  Co.,  17  I.  C.  C. 
413;  Bascom  Co.  v.  St.  Louis,  I.  M. 
&  S.  Ry.  Co.,  17  I.  C.  C.  354; 
Greater  Des  Moines  Committee  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  17  I. 
C.  C.  54. 

55.  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Tompkins.  176  U.  S.  167,  44  L. 
Ed.  417.  20  Sup.  Ct.  336;  Texas  "; 
P  Ry.  Co.  V.  Interstate  Commerce 
Commission.  162  U.  S.  197,  40  L. 
Ed.  940.  le  Sup.  Ct.  666;  Union 
Pac.  Ry.  Co.  v.  United  States,  117 
U.  S.  355.  29  L.  Ed.  920,  6  Sup.  Ct. 
772. 


394  Duties  to  Interstate  Shippehs.  [§  21G 

and  other  cities  similarly  situated,  was,  by  the  Commis- 
sion, held  to  be  a  violation  of  Section  3  of  the  Act,'*''  and 
by  the  Supreme  Court  to  be  a  violation  of  Section  4  pro- 
hibiting carriers  from  charging  a  lesser  rate  for  a  longer 
than  for  a  shorter  haul  without  the  consent  of  the  Inter- 
state Commerce  Commission."  This  rebilling  or  re- 
shipping  privilege  accorded  at  Nashville  resulted  in 
prolonged  litigation  before  the  Commission  and  the 
courts. 

Under  the  privilege  so  granted,  tlie  through  rates 
from  the  Ohio  and  Mississippi  River  crossings  to  the 
ultimate  destination  points  south  east  of  Nashville  were 
applied.  The  grain  was  shipped  into  Nashville  where 
it  was  unloaded,  elevated  or  sacked,  and,  at  some  time 
within  six  months,  it  was  reshipped  on  to  points  in  the 
south-east.  The  net  freight  charge  for  the  entire  move- 
ment was  based  on  the  through  rate  from  the  crossings 
to  the  final  destination.  For  example,  a  shipment  mov- 
ing from  Evansville,  Ind.,  to  Atlanta,  Ga.,  paid  the  local 
rate  to  Nashville,  and  then  the  local  rate  from  Nash- 
ville to  Atlanta.  As  the  through  rate  from  Evansville 
to  Atlanta  was  lower  that  the  sums  of  the  locals, 
the  difference  between  the  through  rate  and  the  combi- 
nation was  paid  back  to  the  shipper  after  final  delivery. 

Upon  the  complaint  of  shippers  at  Atlanta  and 
other  Georgia  cities  not  favored  with  the  same  privilege, 
the  Commission,  upon  its  first  hearing,  condemned  the 
practice  altogether,  and  held  that  the  reshi])ping  ])i'iv- 
ilege  and  the  application  of  rates  thereunder  obtaininu' 
at  Nashville,  was  an  illegal  device  by  which  grain  and 
grain  products  were  transported  at  less  than  the  tarifT 
rate  applicable  thereto."*  But  the  Commission  post- 
poned the  effective  date  of  its  order  entered  pursuant 
to  the  first  report  so  that  it  might  institute  a  country- 
wide investigation  of  the  practice  involved.  After  a  hear- 
ing, the  Commission  decided  that  its  order  abolishing 

56.  Duncan  &  Co.  v.  NashviUe,       &  N.   R.  Co.,   235  U.  S.  314,  59  L. 
C.  &  St.  L.  Ry.  Co.,  16  I.  C.  C.  590,       Ed.   245,  35   Sup.  Ct.  113. 

21  I.  C.  C.  186,  35  I.  C.  C.  477.  58.    Duncan  &  Co.  v.  Nashville, 

57.  United    States   v.    Louisville       C.   &   St.    L.   Ry.   Co.,    16    I.   C.    C. 

590. 


§    1'17|  PriKI'KRKNCES    ReTWKEN    LOCALITIKS.  395 

the  resliippiiii^-  privilcf^o  was  too  strict.^'  Thereafter, 
ill  tlic  NasliviUc  case,  tlio  Commission  delivered  a  sup- 
plemental report  holding-  lliat  tlic  ])ra(',tic('  of  ^rantin;^ 
tlie  reshipping  privilege  at  Nashville,  while  refusing 
it  to  Atlanta  and  other  eomplaining  cities,  was  an  undue 
and  unreasonable  preference  to  Nashville,  in  violation 
of  the  statute.''" 

In  a  suit  thereafter  to  annul  the  order  of  the  Inter- 
state Commerce  Commission,  the  Commerce  Court  held 
that  the  granting  of  the  reship])ing  privilege  at  Nash- 
ville was  not  an  undue  discrimination  within  the  mean- 
ing of  the  law,  but  was  the  result  of  and  was  justified 
by  competition  of  water  lines  on  the  Cumberland  Rivei- 
from  the  Ohio  River  crossings."^  On  appeal  to  the 
United  States  Supreme  Court,  the  judgment  of  the  Com- 
merce Court  was  reversed  and  the  cause  was  remanded 
for  a  decree  to  be  entered  in  harmony  with  the  opinion 
of  the  court  without  prejudice  to  the  rights  of  the  car- 
rier to  apply  to  the  Commission  to  be  relieved  from  the 
operation  of  the  provisions  of  Section  4.  Thereafter, 
the  Commission  made  the  same  finding  of  facts  and  held 
that  the  granting  of  the  privilege  to  Nashville  and  a 
denial  of  it  to  other  cities,  was  unlawful/'" 

§  217.  Differential  Between  Cities  on  Opposite 
Banks  of  Rivers  Crossed  by  Expensive  Bridges.  While 
two  cities  lying  on  different  sides  of  a  large  river  may 
be  so  closely  related  as  to  form  in  a  broad  sense  one 
industrial  and  commercial  community,  yet  when  trans- 
portation of  interstate  freight  or  passengers  is  affected 
through  the  performance  of  additional  carriage  over 
expensive  bridges  that  involve  a  very  substantial  ad- 
ditional outlay  of  capital,  they  do  not  form  one  com- 
munity for  transportation  and  rate-making  purposes.®^ 

59.    In   re   Substitution   of  Ton-  63.    In     re     advances     Lumber, 

nage,  18  I.  C.  C.  280.  sourthern    points    to    Ohio    River 

GO.    Duncan  &  Co.  v.  Naishville,  crossings,  34  I.  C.  C.  652;  Illinois 

C.  &  St.  L.  Ry.  Co.,  21  I.  C.  C.  186.  Coal  Cases,  32  I.  C.  C.  659;  Metrop- 

61.  Louisville    &    N.    R.    Co.    v.  olis    Commercial   Club    v.    Illinois 
United  States.  197  Fed.  58.  Cent.  R.  Co..  30  I.  C.  C.  40;   Board 

62.  Duncan  &  Co.  v.  Nashville,  of  Trade  of  Paducah,  Kentucky,  v. 
C.  &  St.  L.  Ry.  Co.,  35  I.  C.  C.  477.  Illinois   Cent.   R.   Co.,   29    I.   C.   C. 


396  Duties  to  Interstate  Shippers.  [§  217 

Because  of  the  great  cost  of  siicli  structures,  a 
bridge  has  been  regarded  as  adding  a  constructive  mile- 
age to  the  carrier's  line  for  which  an  additional  charge 
may  be  exacted.*'*  For  example,  in  Norman  Lumber 
Co.  V.  Louisville  &  N.  R.  Co.,"'*  the  maintenance  of  rates 
from  Louisville,  Ky.,  to  central  freight  association  terri- 
tory one  cent  higher  than  rates  from  Cincinnati,  Ohio, 
to  equidistant  points,  and  conversely  rates  from  equi- 
distant southeastern  territory  to  Louisville  one  cent 
less  than  those  contemporaneously  maintained  to  Cincin- 
nati and  other  points  on  the  north  side  of  the  Ohio  River, 
were  held  to  be  non-discriminatory  because  of  the  bridge 
crossing.  In  other  words,  the  Commission  held  that 
Louisville  ought  not  to  be  considered  on  the  north  bank 
of  the  river  for  inbound  shipments  and  on  the  south 
bank  of  the  river  for  outbound  shij^iments. 

In  the  consideration  of  another  complaint,  the  Com- 
mission found  that  a  differential  of  twenty  cents  per 
ton  in  favor  of  East  St.  Louis,  111.,  as  against  St.  Louis, 
Mo.,  on  shipments  of  coal  from  certain  districts  in  the 
state  of  Illinois  was  reasonable.*"'  Lower  rates  to  Coun- 
cil Bluffs,  Iowa,  from  points  in  Iowa  than  from  the  same 
places  to  Omaha,  Neb.,  across  the  Missouri  River,  were 
also  upheld,  the  existence  of  an  expensive  bridge  over 
the  river  creating  a  dissimilar  circumstances.*'^ 

§  218.  Carriers  Unduly  Favoring  Industries  on 
Their  Own  Lines  as  Against  Competitors  on  Other  Lines. 
The  exercise  of  a  carrier's  rate-making  power  is  arbi- 
trary  and  discriminatory  when  it   seeks  to   retain  for 

593;  Norman  Lumber  Co.  V.  Louis-  64.    Railroad      Commission      of 

ville  &  N.  R.  Co.,  29  I.  C.  C.  565,  Iowa  v.  Illinois  Cent.  R.  Co.,  20  I. 

22  I.  C.  C.  239;  Manufacturers  and  C.  C.  181. 

Merchants'  Ass'n  of  New  Albany,  65.    Norman      Lumber      Co.      v. 

Indiana  v.  Aberdeen  &  A.  R.  Co.,  Louisville  &  N.  R.  Co.,  29  I.  C.  C. 

24    I.    C.    C.    331;    Railroad    Com-  5G5 

mission   of  Iowa  v.   Illinois   Cent.  06.    Illinois  Coal  Cases,  32  I.  C 

R.  Co.,  20  I.  C.  C.  181;  Commercial  C.  659. 

Club  of  Omaha  v.  Chicago  &  N.  W.  67.    Commercial  Club  of  Omaha 

Ry.    Co.,    7   I.    C.   C.    386;    Freight  v    Chicago  &  N.  W.  Ry.  Co.,  7  I. 

Bureau    of    Cincinnati    v.    Cincin-  C    C.  386. 

nati,  N.   0.   &  T.  P.  Ry.  Co.,  7  I. 

C.  C.  180. 


§  210]  Preferences  Ijktwken  Localitiks.  397 

itself  a  market  at  ])oints  on  its  line  for  tlie  sole  benefit 
of  producino-  points  also  on  its  own  line  to  the  exclusion 
of  all  others. 

An  attempt  to  restrict  traffie  to  movements  be- 
tween ])oints  on  its  own  line  is  never  justifi<'d."* 
Thus,  joint  rates  on  lumber  from  points  in  Texas  and 
Louisiana  by  way  of  the  ori.i?inal  lines  and  the  Santa  Fe 
to  points  on  the  lines  of  the  Santa  Fe  system  in  Okla- 
homa were  found  to  be  unjustly  discriminatory  to  the 
extent  that  they  exceeded  rates  in  effect  from  other 
points  on  the  Santa  Fe  system  in  Texas  and  Tjouisiana  to 
the  same  points  of  destination.''"  Likewise,  joint  rates 
on  lumber  from  Leesville,  La.,  by  way  of  the  Kansas 
City  Southern  railroad  and  the  Santa  Fe  system  to  points 
on  the  latter  road  in  Oklahoma  higher  than  contempora- 
neous rates  maintained  from  competitive  jioints  on  the 
Santa  Fe  in  Louisiana,  were  lu^ld  to  be  unjustly  disciim- 
inatory.^° 

§  219.  Stopping  Carload  Shipments  at  Points  En 
Route  to  Finish  Loading  Discriminatory,  When.  The 
service  of  stopping  carload  shipments  in  transit  for  the 
purpose  of  finisliing  loading  or  to  partially  unload  is 
of  great  value  not  only  to  the  shippers  immediately  con- 
cerned in  the  transportation,  but  to  the  carriers  as  well, 
through  the  better  utilization  of  their  equipment.'^  In 
the  case  cited,  the  Commission  refused  to  authorize  the 
discontinuance  of  such  a  practice  by  carriers  in  central 
freiglit  association  and  western  classification  territories; 
but  it  appeared  in  that  case,  however,  that  the  service 
was  not  restricted  to  particular  stations. 

A  rule  of  western  carriers  permitting  the  sto])ping 
of  cars  of  livestock  for  additional  loading  at  a  charge 
of  $2.00  per  car  was  withdrawn  by  the  carriers,  and 
the  Commission,   upon  a   general   investigation   of  the 

68.  Nona    MiUs    Co.    v.    Kansas      v.  Te.xas  &  N.  O.  R.  Co.,  42  I.  C.  C. 
City  S.  Ry.  Co.,  39  I.  C.  C.  125;  In       88. 

re  advances   Lumber,  Texas,  etc.,  70.    Nona    Mills    Co.    v.    Kansas 

to  Oklahoma,  etc.,  28  I.  C.  C.  471;  City  S.  Ry.  Co.,  39  I.  C.  C.  125. 

Star  Grain  &  Lumber  Co.  v.  Atchi-  71.    In  re  Stopping  Cars  in  Tran- 

son,  T.  &  S.  F.  Ry.  Co.,  14  I.  C.  C.  sit  to  Complete  Loading,  36  I.  C. 

364.  C.  130. 

69.  Luther  &  Moore  Lumber  Co. 


398  Duties  to  Interstate  Shippers.  [§  219 

subject,  held  that  the  discontinnance  of  the  service  as 
it  then  existed,  was  proper.  It  appeared  that  the  ship- 
pers took  advantage  of  the  opportunity  to  load  or  un- 
load by  substituting  tonnage  and  thus  defeat  the  lawful 
rate.  The  carriers  also  urged  that  the  stopping  of  live- 
stock in  transit  to  complete  the  load  disarranged  the 
train  schedules  and  resulted  in  serious  delays. ^^  Subse- 
quently one  of  the  defendant  carriers  in  the  Hoyt  case 
re-established  the  service  of  stopping  cars  of  hogs  to 
finish  loading  at  only  nine  stations  on  its  line,  one  of 
them  being  Winona,  Minn.  Upon  the  complaint  of  a 
packing  company  at  Winona  alleging  that  such  a  prac- 
tice was  discriminatory  in  that  the  transit  service  was 
not  general  and  open  to  all  on  equal  terms  at  all  sta- 
tions, the  Commission  ordered  the  carrier  to  desist  from 
the  practice  unless  similar  transit  service  was  main- 
tained at  all  stations  on  the  line." 

72.  Hoyt   &   Bergen   v.   Chicago       Chicago  &  N.  VV.  Ry.  Co.,  42  I.  C. 
&  N.  W.  Ry.  Co.,  32  I.  C.  C.  319.  C.  189. 

73.  Interstate    Packing    Co.    v. 


CHAPTER  XI 

Uni^will    J*ui<:fehenck    oh    Aiaa.n  tack    to    pAinicrLAH 
Kinds  of  Traffic 

Sec.  220.     Unreasonable   Preferences  to  any    Particular   Description    of 

Traffic. 
Sec.  221.     Passage  of  Statute   Prohibiting   Discriminations   Stimulated 

Movement  for  a  More  Uniform  Classification. 
Sec.  222.     Duty   of  Commission   When   Classification   is   Used   to    Kffect 

Unjust  Discrimination. 
Sec.  223.     Controlling     Considerations     in     Making     Classifications     of 

Freight. 
Sec.  224.     Discriminations    and    Preferences    in    the    Classifications    of 

Commodities. 
Sec.  225.     Differential  Between  Raw  Material  and  Manufactured  Proc!- 

ucts— Grain  and  Flour,  Livestock  and  Meats,  Etc. 
Sec.  226.     Differential  between  Carload  and  Less  than  Carload   Rates 

Lawful. 
Sec.  227.     Relation    Between    Carload    and    Less    Than    Carload    Rates 

Must  not  be  Excessive. 
Sec.  228.     Application  of  Carload   Rates  to  Carload   Lots   when   Goods 

Belong  to  Several  Owners. 
Sec.  229.     Wheat  and  Coarse  Grain  Not  "Like  Traffic"  Requiring  Same 

Rate. 
Sec.  230      Different  Uses  to  which  Commodity  is  Put,  No  Justification 

For   Different  Rates. 
Sec.  231.     .Justifiable  Discrimination  Between  Shipments  of  Oil  in  Bar- 
rels and  in  Tank  Cars. 
Sec.  232.     Relationship    of    Rates    on    Lumber    and    Lumber    Products 

Must  be  Free  From  Discrimination. 
Sec.  233.     Differentials  Between  Similar  Commodities  .Justified  by  Dif 

ferent  Conditions  and  Circumstances  Affecting  Transpor- 
tation— Lumber  and  Logs. 
Sec.  234.     Lower  Rates  on   Returned   Shipments   Illegal   Except  When 

Refused   by  Consignees. 

§  220.  Unreasonable  Preferences  to  any  Particu- 
lar Description  of  Traffic.  The  statute  also  proliibits 
any  undue  or  unreasonable  jireference  or  advantage 
to  any  particular  description  of  trafllic  in  any  respect 
whatsoever.  For  convenience  in  making  transportation 
rates  and  charges,  freight  is  arranged  and  put  into  dif- 
ferent classes  according  to  the  expense  of  carriage, 
bulk,  value,  risk,  competition,  and  other  considerations 

(399) 


400  Duties  to  Interstatp:  Shippers.  [§  220 

affecting  the  cost  and  value  of  tlie  transportation  ser- 
vice. 

Notwithstanding  the  repeated  efforts  of  the  Inter- 
state Commerce  Commission  to  secure  nniformiiy  in 
classification  thronghont  the  country,  different  classi- 
fications have  been  and  are  still  maintained  in  various 
sections  of  the  country  and  frequently  articles  classed 
together  in  one  section  are  placed  in  separate  classes 
in  another  section  of  the  country.  Since  the  enact- 
ment of  the  Act  to  Regulate  Commerce,  the  number  of 
separate  classifications  has  been  steadily  reduced,  and 
hundreds  of  articles  are  given  one  and  the  same  rate 
by  being  placed  in  one  class.  Without  an  arrange- 
ment classifying  the  freight  into  classes,  the  carriers 
would  be  compelled  to  fix  a  rate  on  each  one  of  the 
several  hundred  thousand  articles  carried  by  them.  The 
prevention  of  undue  preference  against  particular  kinds 
of  traffic,  therefore,  requires  the  proper  classification 
of  freight. 

§  221.  Passage  of  Statute  Prohibiting  Discrimina- 
tions Stimulated  Movement  for  a  More  Uniform  Classi- 
fication. The  prohibition  of  unjust  discriminations  by 
the  passage  of  the  Act  to  Regulate  Commerce  stim- 
ulated a  movement  for  uniformity  in  classification  of 
freight.  At  the  time  of  the  passage  of  the  statute,  there 
was  great  confusion  in  the  traffic  situation  because  of 
the  multiplicity  of  classifications.  Often  two  or  more 
classifications  were  in  effect  on  one  road.  One  carrier 
had,  in  1883,  nine  different  classifications  in  effect  for 
traffic  originating  on  its  own  line.  Upon  the  adoption 
of  the  Interstate  Commerce  Act,  the  first  important 
step  to  secure  greater  uniformity  in  classification  was 
begun  by  the  establishment  of  the  official  classification 
which  was  generally  adopted  throughout  the  territory 
north  of  the  Ohio  and  Potomac  rivers  and  east  of  a 
line  drawn  from  Chicago  to  St.  Louis  and  the  junction 
of  the  Mississippi  and  Ohio  rivers.  During  the  year 
1889,  practically  all  the  railroads  operating  through  the 
territory  from  Chicago,  St.  Louis  and  the  Pacific  Coast 
adopted  what  is  now  known  as  the  Western  Classifica- 


^  222.1 


rNLAWKi'L  Preferences  to  Traffic. 


401 


tioTi,  and,  in  llio  same  yoar,  all  llio  farriers  sontli  of  ilic 
Ohio  River  and  east  of  the  Mississii)pi  Kiver  adopted 
the  classification  now  known  as  the  Southern  classifi- 
cation. There  are,  therefore,  at  the  ])resent  time,  tliree 
great  classifications,  the  Official,  Western  and  Southern, 
subject  to  some  exception  sheets  and  commodity  rates 
of  the  individual  lines  and  also  a  limited  use  of  certain 
state  classificjitions,  transcontinental  tariifs,  and  the 
Canadian  classification.  Sometimes  these  classifications 
overlap.  Freight  shipped  from  a  point  in  one  territory 
to  a  point  in  another  is  sometimes  governed  by  the 
classification  of  the  place  of  destination  and  at  other 
times  by  the  classification  of  the  ])oint  of  origin.^ 

§  222.  Duty  of  Commission  When  Classification 
is  Used  to  Effect  Unjust  Discrimination.  The  classifi- 
cation of  an  article  of  freight  may  be  used  as  a  device 
to  eifect  an  unjust  discrimination  in  violation  of  the 
statute.  For  example,  a  rate  upon  a  commodity  may 
be  increased  by  changing  its  classification.  When  the 
classification  of  an  article  is  so  used  by  a  carrier,  it 
is  the  duty  of  the  Commission  to  revise  the  classification 
so  that  the  abuse  may  be  corrected.  This  power  of  the 
Commission  extends  to  joint  as  well  as  individual  classi- 
fications.^ 


1.  In  re  Western  Classification, 
25  I.  C.  C.  442. 

2.  Cincinnati,  H.  &  D.  R.  Co. 
V.  Interstate  Commerce  Commis- 
sion, 206  U.  S.  142,  51  L.  Ed.  995: 
27  Sup.  Ct.  648.  The  Court  said: 
"This  brings  us  to  the  final  con- 
tention made  on  behalf  of  the 
railway  companies,  viz.,  that  the 
order  of  the  Commission  was  not 
lawful,  because  not  within  the 
power  conferred  by  the  act  of 
Congress.  This  is,  we  thinx. 
largely  disposed  of  by  what  we 
have  previously  said  as  to  the 
nature  and  scope  of  the  investiga- 
tion which  the  Commission  was 
authorized  to  make  and  the  redress 


which  it  was  empowered  to  give 
irrespective  of  the  particular  char- 
acter of  the  complaint  by  which 
its  power  may  have  been  previous- 
ly invoked.  Whatever  might  be 
the  rule  by  which  to  determine 
whether  an  order  of  the  Commis- 
sion was  too  general  where  the 
case  with  which  the  order  dealt 
involved  simply  a  discrimination 
as  against  an  individual  or  a 
discrimination  or  preference  in 
favor  of  or  against  an  individual 
or  a  speciiic  commodity  or  com- 
modities or  localities,  or  as  ap- 
plied to  territory  subject  to  dif- 
ferent classifications,  and  we  think 
it    is   clear   that   the   order   made 


1    Coiiti-i'l    Ciirrii'i^ 


402  Duties  to  Interstate  Shippers.  [§  !223 

§  223.  Controlling  Considerations  in  Making  Clas- 
sifications of  Freight.  Many  rules  liave  been  recognized 
and  adopted  by  the  Commission  in  the  classification  of 
freight  for  shipment.  ''Some  of  the  rules,  and  in  fact 
most  of  them,  testified  to  by  the  witnesses  in  this  case," 
said  the  Commission  in  an  early  case,^  ''in  regard  to 
the  controlling  considerations  in  the  making  of  classifi- 
cations of  freight,  are  such  as  have  been  recognized  by 
the  Commission.  For  example,  that  a  reasonable,  fair 
and  just  difference  may  be  made  in  proportion  to  quanti- 
ty hauled  of  the  same  article  in  a  full  carload  and  in 
less  than  carload  lots,  and  the  respective  rates  charged 
upon  each  according  to  weight,  is  a  i)rin('i])Ie  that  has 
been  often  recognized  by  the  Commission.  That  a  rate 
maker  may  and  in  fact  should  take  into  consideration,  as 
shown  by  the  evidence  in  this  case,  such  controlling 
conditions,  in  preparing  a  classification,  as  bulk  and 
space  occupied,  the  weight  of  the  article  as  compared 
with  its  dimensions,  its  value,  whether  it  can  be  so 
loaded  into  a  car  as  to  make  a  full  carload,  and  whether 
as  a  matter  of  fact  it  is  hauled  in  carloads  as  well  as  in 
less  than  carloads,  are  each  and  all  true.  But  the  mere 
fact  that  one  article,  for  example,  sewing  machines,  is 
shipped  'in  greater  quantities'  than  surgical  chairs, 
when  each  as  a  rule  is  shipped  in  less  than  carload  quan- 
tities, and  of  no  large  difference  in  bulk,  weight  and 
value,  and  of  no  appreciable  difference  in  expense  of 
handling  and  of  hauling,  that  this  alone  should  consti- 
tute in  itself  any  reason  why  the  former  should  enjoy 

in  this  case  was  within  the  com-  territory,  and  created  discrimi- 
petency  of  the  Commission,  in  view  nations  and  preferences  among 
of  the  nature  and  character  of  the  manufactures  and  shippers  of  the 
wrong  found  to  have  been  commit  commodity  and  between  localities 
ted  and  the  redress  which  that  in  such  territory,  we  think  the 
wrong  necessitated.  Finding,  as  Commission  was  clearly  within 
the  Commission  did,  that  the  clas-  the  authority  conferred  by  the  act 
sification  by  percentage  of  common  to  regular  commerce  in  directing 
soap  in  less  than  carload  lots  the  carriers  to  cease  and  desist 
operating  throughout  Official  Clas-  from  further  enforcing  the  clas- 
sification territory,  brought  about  sification  operating  such  results." 
a  general  disturbance  of  the  rela-  3.  Harvard  Co.  v.  Pennsylvania 
lions  previously   existing  in   that  Co.,  3  I.  C.  R.  257,  4  I.  C.  C.  212. 


§  224]  L^Ni^vwiri.  I'i'.kferences  to  Tisafkic.  403 

lower  rates  or  classification  than  the  latter,  merely 
for  the  reason  that  they  arc  shii)i)ed  'in  p:reater  quanti- 
ties,' is  a  doctrine  to  wliich  we  cannot  ^ive  our  assent. 
In  such  a  case  mere  quantity,  not  measured  by  a  recog- 
nized unit  of  quantity  ada])ted  to  carria,e:e  and  lesseninu" 
the  exi)ense  of  handling-  and  cairiaji^e,  cannot  be  allow- 
ed to  affect  rates  in  the  transportation  of  property. 
The  small  dealer  is  entitled  to  just  and  reasonable  rates 
on  his  i)r()duct,  as  much  so  as  many  and  large  dealers, 
and  any  discrimination  between  them  in  rates  based 
u])on  the  idea  that  the  one  class  of  persons  makes  many 
shipments  while  the  other  makes  but  few  is  unjust  and 
unreasonable  under  the  provisions  of  the  Act  to  Regu- 
late Commerce.  Tt  is  a  discrimination  in  favor  of  one 
kind  of  traffic  as  against  another  in  the  vital  matter  of 
rates,  and  is  unlawful." 

§  224.  Discriminations  and  Preferences  in  the  Clas- 
sification of  Commodities.  Freight  classification  is 
based  upon  the  relationship  which  commodities  bear 
to  each  other  in  such  respects  as  character,  use,  bulk, 
weight,  value,  tonnage  or  volume,  risk,  cost  of  carriage, 
ease  of  handling,  and  controlling  conditions  caused  by 
competition.*  But  the  classification  of  property  must 
be  based  upon  a  real  distinction  from  a  transportation 
standpoint.^  Competition  may  be  taken  into  considera- 
tion in  classifying  freight  within  proper  limitations 
not  only  between  carriers  but  also  between  commodities 

4.    Cincinnati,  H.  &  D.  R.  Co.  v.  78;   Page  v.  Delaware,  L.  &  W.  R. 

Interstate  Commerce  Commission,  Co.,  6  I.  C.  C.  548;    Coxe  Bros.  & 

206   U.    S.    142,   51   L.    Ed.   995,   27  Co.  v.  Lehigh  VaUey  R.  Co.,  4  I.  C. 

Sup.  Ct.  648;   Fels  &  Co.  v.  Penn-  C.    535;    Harvard   Co.   v.    Pennsyl- 

sylvania   R.   Co.,   23   I.   C.   C.   483,  vania  R.  Co.,  4  I.  C.  C.  212;  Warner 

25  I.  C.  C.  154;  Forest  City  Freight  v.  New  York  Cent.  &  H.  River  R. 

Bureau   v.  Ann  Arbor  R.   Co.,   18  Co.,  4  I.  C.  C.  32;  Thurber  v.  New 

I.  C.  0.  205;   Metropolitan  Paving  York  Cent.  &  H.  River  R.   Co.,  3 

Brick   Co.   v.    Ann    Arbor    R.    Co.,  I.  C.  C.  473;   Pyle  &  Sons  v.  East 

17  I.  C.  C.  197;  Proctor  &  Gamble  Tennessee,  V.  &  G.  R.  Co.,  1  I.  C. 

Co.  v.  Cincinnati,  H.  &  D.  Ry.  Co.,  C.  465. 

9  I.  C.  C.  440;   Myer  v.  Cleveland,  5.    Stowe-Fuller  Co.  v.  Pennsyl- 

C.  C.  &  St.  L.  Ry.  Co.,  9  I.  C.  C.  vania  Co.,  12  I.  C.  C.  215. 


404  Duties  to  Interstate  Shippees.  [§  224 

produced  in  different  sections  of  the  country.^  In  deter- 
mining what  freight  rates  should  be  borne  by  different 
commodities  an  attempt  should  be  made  to  obtain  a 
fair  relation  between  those  commodities,  and  a  classifi- 
cation which  directly  ignores  all  considerations  of  this 
kind  or  which  directly  fails  to  give  due  weight  to  such 
considerations,  is  unjust  and  unreasonable.^ 

Under  the  amendment  of  1910  to  Section  1  of  the 
Act,  it  is  made  the  duty  of  all  common  carriers  subject  to 
federal  control  to  establish,  observe  and  enforce  just 
and  reasonable  classifications  of  property  for  trans- 
portation, and  just  and  reasonable  regulations  and  prac- 
tices affecting  classifications,  and  every  unjust  and  un- 
reasonable classification  is  prohibited  and  declared  to 
be  unlawful.  At  the  same  time  Section  15  of  the  Act 
was  so  amended  as  to  provide  that  if,  after  full  hearing, 
the  Commission  should  be  of  the  opinion  that  any  indivi- 
dual or  joint  classification  is  unjust,  unreasonable,  un- 
justly discriminatory  or  unduly  preferential,  it  shall 
be  authorized  to  determine  and  prescribe  just,  fair  and 
reasonable  individual  or  joint  classifications,  and  to 
make  an  order  that  the  carrier  shall  adopt  the  classifi- 
cations so  prescribed. 

Even  before  the  passage  of  this  amendment,  the  Su- 
preme Court  had  held  that  the  Commission  had  the 
power,  in  the  public  interest,  to  consider  the  whole  sub- 
ject of  classification  and  the  operation  thereof,  so  as  to 
prohibit  undue  preferences  and  unjust  discriminations.^ 
In  the  last  case  cited,  it  appeared  that  the  carriers  ad- 
vanced soap  in  carload  lots  from  the  sixth  to  the  fifth 
class,  and  in  less  than  carload  lots  from  the  fourth  to  the 
third  class.  Shortly  thereafter  less  than  carload  rates 
on  soap  were  again  changed  to  twenty  per  cent  less 
than  third  class  but  not  less  than  fourth  class.  Proctor 
&  Gamble  Co.  filed  a  complaint  before  the  Commission 
because  of  this  increase  against  several  carriers  in  of- 

6.  Metropolitan  Paving  Brick  8.  Cincinnati,  H.  &  D.  R.  Co.  v. 
Co.  V.  Anil  Arbor  R.  Co.,  17  I.  C.  Interstate  Commerce  Commission, 
C.  197.  206  U.  S.  142,  51  L.  Ed.  995,  27  Sup. 

7.  Myer  v.  Cleveland,  C.  C.  &  St.  Ct.  648. 
L.  Ry.  Co..  9  I.  C.  C.  78. 


§  225]  Uxr^vwiaji.  Preferences  to  Traffic.  405 

ficial  classification  territory.  The  Commission  held 
that  .sinc(!  the  cai'riei-s  had  vohintaiily  carried  less  than 
carload  shipments  of  soap  at  fourth  class  rates  for  ten 
years  previously,  a  presumption  arose  that  such  a  clas- 
sification was  reasonable,  and  an  order  was  entered  re- 
(juiring  the  carriers  to  cease  and  desist  from  enforcing? 
the  twenty  per  cent  less  than  the  third  class  rates  on 
less  than  carload  soa])  and  from  chai\i'in,£^  the  complain- 
ant higher  than  fourtli  class  rates  upon  shi]mients  of  that 
commodity.  The  carriers  did  not  observe  the  order  until 
the  Supreme  Court  upheld  the  decision  of  the  Commis- 
sion." Prior  to  the  amendment  of  1906  which  gave 
the  Commission  power  to  prescribe  the  rate  for  the  fu- 
ture, the  Commission  had  nevertheless  repeatedly  as- 
serted and  exercised  the  power  to  order  and  change  any 
classification.^" 

§  225.  Differential  Between  Raw  Material  and 
Manufactured  Products — Grain  and  Flour,  Livestock 
and  Meats,  Etc.  There  is  no  rule  of  law  requiring  car- 
riers to  fix  the  same  rate  on  the  manufactured  product 
as  on  the  raw  material  from  which  it  is  made;^^  but 
generally  the  manufactured  products  bear  higher  rates 
of  transportation  than  the  raw  material  because  there 
is  ordinarily  a  substantial  difference  between  the  value 

9.  Proctor  &  Gamble  Co.  v.  Cin-  R.  Co.,  209  U.  S.  108,  52  L.  Ed.  705, 
cinnati,  H.  &  D.  Ry.  Co.,  9  I.  C.  C.  28  Sup.  Ct.  493;  In  re  Kansas- 
440.  See  also  Fels  &  Co.  v.  Penn-  California  Flour  Rates,  32  I.  C.  C. 
sylvania  R.  Co.,  23  I.  C.  C.  483,  602;  Stuarts  Draft  Milling  Co.  v. 
25  I.  C.  C.  154,  in  which  it  was  Southern  Ry.  Co.,  31  I.  C.  C.  623; 
held  that  less  than  carload  ship-  In  re  Kansas-California  Flour 
ments  of  soap  should  take  fourth  Rates,  29  I.  C.  C.  459;  Arizona 
class  rate  and  reparation  was  Corporation  Commission  v.  Arl- 
directed.  zonu  &  X.  W.  Ry.  Co..  29  1.  C.  C. 

10.  Harvard  Co.  V.  Pennsylvania  424;  State  of  Iowa  v.  Atlantic 
Ry.  Co.,  2  I.  C.  C.  122,  2  I.  C.  R.  81;  Coast  Line  R.  Co.,  24  I.  C.  C.  134; 
Hurlburt  v.  Lake  Shore  &  M.  S.  In  re  Grain  Product  Rates,  21  I. 
Ry.  Co.,  2  I.  C.  C.  122,  2  I.  C.  R.  81:  C  C.  22;  Howard  Mills  Co.  v. 
Reynolds  v.  Western  New  York  &  Missouri  P.  Ry.  Co.,  12  I.  C.  C.  258; 
P.  Ry.  Co.,  1  I.  C.  C.  393,  1  I.  C.  R.  In  re  Corn  and  Corn  Products,  11 
685.  I.  C.  C.  212,  11  L  C.  C.  220;  Board 

11.  Interstate  Commerce  Com-  of  R.  R.  Com'rs  of  Kansas  v.  Atchi- 
mission  v.  Chicago  Great  Western  son,  T.  &  S.  F.  Ry.,  8  I.  C.  C.  304; 


406  Duties  to  Interstate  Shippees.  [§  225 

of  the  Olio  and  that  of  the  otlier.^-  Tn  one  case  the 
Siii)reiiie  Court  held  that  a  liigher  rate  for  the  shipment 
of  livestock  than  for  the  transportation  of  packing- 
honse  prodncts  and  dressed  meats  was  not  an  unjust 
discrimination.^^ 

There  is  no  inflexible  requirement  that  the  rates 
upon  grain  and  the  products  of  grain  should  be,  under 
all  circumstances,  the  same,  and  the  carriers  may,  in 
just  regard  to  their  own  interests  to  meet  special  con- 
ditions, vary  these  rates  within  narrow  limits/*  Thus, 
in  the  case  last  cited,  a  rate  of  tifty-five  cents  per  hun- 
dred pounds  on  wheat  and  a  rate  of  sixty-five  cents 
per  hundred  pounds  on  flour  between  points  in  Kansas 
and  California  was  held  to  be  discriminatory,  but  the 
Commission  decided  that  a  difference  of  seven  cents 
would  not  be  discriminatory.^^  At  the  same  time  the 
Commission  held  that  the  differential  on  corn  meal 
shipped  from  Missouri  River  points  to  Texas  destina- 
tions should  not  be  more  than  three  cents  per  hundred 
pounds  above  the  rate  on  corn  between  the  same  points." 
The  Commission,  in  passing  upon  the  relation  between 
flour  and  grain  rates  in  another  case  said."  "The 
question  of  proper  relation  of  flour  and  grain  rates  is 
not  new.  We  have  heretofore  considered  it  from  many 
angles  and  with  respect  to  various  sections  of  the  coun- 
try and  have  always  had  regard  for  the  situation  ex- 
isting in  the  particular  territory  involved  and  treated 
the  question  according  to  the  special  circumstances 
and  conditions  present  in  each  case.     That  is  to   say, 

Kauffman  Milling  Co.  v.  Missouri  Oil  Co.  v.  St.  Louis  &  S.  F.  R.  Co., 

P.  Ry.  Co.,  4  I.  C.  C.  417,  3  I.  C.  R.  20  I.  C.  C.  37. 

400;  Bates  v.  Pennsylvania  R.  Co.,  13.    Interstate    Commerce    Com- 
3  I.  C.  C.  435,  2  I.  C.  R.  715.  mission  v.  Cliicago  Great  Western 
12.    Knight     Woolen     Mills     v.  R.   Co.,   209   U.    S.   108,   52    L.   Ed. 
Chicago  &  N.  W.  Ry.  Co.,  32  I.  C.  705,  28  Sup.  Ct.  493. 
C.  490;  In  re  advances  Grain  Rates  14.    Howard    Mills    Co.    v.    Mis- 
in  C.  F.  A.  territory,  28  I.  C.  C.  souri  P.  Ry.  Co.,  12  I.  C.  C.  258. 
549;    In    re    advances    Brooms    to          15.    In  re  Corn  and  Corn  Prod- 
Colorado,  28  I.  C.  C.  310;  McClung  ucts,  11  I.  C.  C.  212. 
&  Co.  V.  Southern  Ry.  Co.,  23  I.  C.  16.    In  ro  Corn  and  Corn  Prod- 
C.    414;    Electric    Malting    Co.    v.  ucts,  11  I.  C.  C.  220. 
Atchison,   T.   &  S.  F.  Ry.   Co.,   23  17.    Stuarts  Draft  Milling  Co.  v. 
I.  C.  C.  373;  East  St.  Louis  Cotton  Southern  Ry.  Co.,  31  I.  C.  C.  623. 


§  '2-i)\  rxLAwiri,  I*i{i:fkhknc'ks  TO  TitAKiic  407 

we  liavo  not  attomptod  to  lay  down  any  fixed  rule  to 
^•overn  in  all  eases  l)nt  have  in  some  instanees  approved 
equal  rates  on  flour  and  wheat,  in  others  have  upheld 
uniform  spreads  and  in  others  varying  spreads.  The 
arguments  made  in  the  instant  ease  are  also  familiar, 
sug^-estin.ii'  the  broad  ]irin('ii)l('  "f  the  applieation  of 
higher  rates  on  manufactured  piodnds  than  on  law 
materials;  llie  fad  that  flour  is  general l>'  rccognizod 
to  he  moi-e  valuable  than  wheat,  that  it  does  not  load 
so  heavil_\,  is  subject  to  greater  risk  of  loss  and  damage 
in  ti'ansit,  and  has  a  wider  general  distribution;  the 
nuiinteuance  by  carriers  in  some  localities  of  like  or 
equal  rates  on  all  grain  or  grain  products  and  the  natur- 
al advantage  to  the  mill  located  where  the  grain  is  pro- 
duced." 

§  226.  Differential  between  Carload  and  Less  than 
Carload  Rates  Lawful.  A  lower  rate  for  a  carload  than 
for  less  than  a  carload  upon  the  same  article  even  when 
transported  over  the  same  line,  in  the  same  direction 
and  for  the  same  distance  does  not  constitute  either 
an  unjust  discrimination  or  an  undue  ])reference.'- 
But  the  difference  between  the  two  iat<'s  must  be 
reasonable  and  should  ])e  determined  ])rimarily  by 
the  carrier  with  due  regard  to  the  just  interest  of  all.^^ 
The  diiference  in  the  rates  embodies  the  assumption  that 
the  carload  is  the  unit  of  shipment  and  rests  ui)on  the 
difference  which  exists  between  the  cost  of  service  in  the 
case  of  a  carload  shipment  by  one  consignor  to  one  con- 

18.  Duncan  v.  Atchison,  T.  &  S.  the  facts  established  by  the  testi- 
F.  R.  Co.,  6  I.  C.  C.  85;  Thurber  mony  declared  to  be  unreasonable. 
V.  New  York  Cent.  &  H.  River  R.  That  testimony  was  voluminou.s 
Co.,  3  I.  C.  C.  473,  2  I.  C.  R.  742.  and  related,  among  other  things, 

19.  Business  Men's  League  of  to  the  average  cost  of  handling 
St.  Louis  V.  Atchison,  T.  &  S.  F.  and  loading  the  freight  in  car- 
R.  Co.,  9  L  C.  C.  318;  Duncan  v.  loads  and  less  than  carloads,  re- 
Atchison,  T.  &  S.  F.  R.  Co.,  6  L  spectively,  and  of  its  transporta- 
C.  C.  85,  in  which  the  Commission  tion.  unloading  and  delivery;  to 
said:  "The  differences  between  the  the  relative  earnings  from  carloads 
rates  for  carloads  and  less  than  and  less  than  carloads;  to  the  re- 
carloads  on  the  grocery  articles  in  lative  number  and  tonnage  of  car- 
question  in  that  case  were  under  loads  and   less  than   carloads;    to 


408  Duties  to  Interstate  Shippers.  [§  228 

signee  and  that  occasioned  by  a  shipment  in  one  car  of 
many  packages  by  various  consignors  to  various  con- 
signees. 

The  dissimilar  conditions  which  exempt  the  appli- 
cation of  the  statute  are  the  increased  cost  of  loading, 
unloading,  billing  and  collecting  for  several  small  ship- 
ments in  one  car.    "Reasons  that  are  substantial,"  said 
the  Commission  in  another  case,^°  "exist  for  making  the 
rate  lower  per  barrel  in  car  load  lots  than  in  less  than 
car  load  quantities.     The  cost  of  service  is  very  con- 
siderably less  in  the  case  of  shipments  in  car  load  lots 
than  in  less  than  car  load  quantities.     We  have  had  oc- 
casion to  pass  upon  this  frequently,  but   the  evidence 
here  requires  us  to  do  so  again.     The  shipment  by  the 
car  load  goes  direct  to  destination.    It  is  loaded  by  the 
shipper  and  is  unloaded  by  the  consignee.     The  freight 
in  it  does  not  stop  at  the  way  stations  to  be  handled  in 
parcels  to  different  consignees  along  the  line.     Only  one 
bill  of  lading  is  made.    It  requires  but  one  entry  upon 
the  way   bill.      The   time    occupied    in   transporting   it 
to  destination  is  far  less  than  in  the  case  of  a  shipment 
in  less  than  car  load  quantities.     There  is  but  one  col- 
lection of  charges  for  freight.    All  of  these  reasons  apply 
with  the  same  force  whether  the  shi]:)ment  be  in  a  tank 
or  in  barrel  shipments  in  car  load  lots. 

"Where  the  shipment  is  made  in  less  than  car  load 
quantities  a  separate  receipt  or  bill  of  lading  has  to  be 
given  to  every  shipper  for  his  parcel.  A  separate  entry 
of  every  item  has  to  be  made  on  the  way  bill  The 
shipment  is  by  a  local  freight  train  which  stops  at  every 
station  for  which  there  is  a  package  of  freight.  The 
freight  has  to  be  taken  out  in  parcels  and  delivered  at 

the  movement  of  empty  cars  over  whether  the  difference  in  the  cost 
the  lines  of  the  carriers  complain-  of  service  and  other  conditions  in- 
ed  against,  and  to  the  cost  of  cident  to  the  two  modes  of  ship- 
many  of  the  articles  in  question  to  j^jg^t  jg  go  great  as  to  justify  a 
the  seaboard  jobbers  and  the  ^^^^  ^^^  j^^g  ^^^^^  carloads  more 
profit   arising   from   the  business.  ^^^^  ^.^j^^  ^^  ^^^^  ^g  ^j^^^  on  ear- 


In  the  present  cases  there  is  no 

loads. ' 

20.    I 

caiioad"  raVesT'  'it  "is  questionable      S.  R.  Co.,  2  I.  C.  C.  90,  2  I.  C.  R.  67. 


xt.      j-ec  ^      loaas. ' 

proof  except  as  to  the  difference  ^    ,      o,         p  tm 

between  the  carload  and  less  than  20.    Scofield  v.  Lake  Shore  &  M. 


§  227]  Unlawful  Preferences  to  Traffic.  409 

oaoh  of  tliese  stations.  Tlie  frei.i^lit  is  loadod  and  un- 
loaded by  the  railroad  coni])any.  Tliere  are  as  many 
collections  of  cliarp^es  for  freiiciil  as  tliere  are  different 
parcels.  The  time  occupied  in  transporting  it  is  usually 
from  two  to  three  times  as  lon^'  as  in  the  case  of  a  car 
load  shipment — according  to  distance.  It  occupies  a 
whole  car,  and  for  the  vacant  space  in  that  car  the  com- 
pany is  receivino^  no  compensation.  There  is  also  a  con- 
siderable element  of  dan.iicr  attending-  the  handliiiij^  of 
barrel  oil  in  small  lots  which  are  unloaded  b\-  llic  car- 
rier and  stand  in  the  local  station  houses,  whereas  car 
load  lots  are  usually  unloaded  by  the  consi«2:nee  at  a 
distance  from  the  depot  buildin<;-  and  immediately  re- 
moved from  the  premises  of  the  railroad  company.  All 
these  facts  show  that  a  reasonable  difference  can  and 
should  justly  be  made  between  shipments  in  car  load 
lots  and  less  than  car  load  (|uantities." 

§  227.  Relation  Between  Carload  and  Less  Than 
Carload  Rates  Must  Not  Be  Excessive.  Interstate  car- 
riers are  required  to  establish  a  just  relation  between 
carload  and  less  than  carload  rates  in  accordance  with 
some  consistent  principle  throughout  the  classsification 
and  the  rate  schedule  which  is  constructed  upon  it.  An 
excessive  difference  between  the  carload  and  less  than 
carload  rates  on  the  same  commodity  results  in  an  undue 
preference  to  the  carload  shij^iier.-^  The  respective 
rates  on  carload  and  less  than  carloads  must  not  be 
relatively  unreasonable."  In  Business  Men's  League 
V.  Atchison,  T.  &  S  F.  Ry.  Co.,  cited  in  the  notes,  the 
Commission  held  that  in  the  adjustment  of  carload  and 
less  than  carload  rates  from  the  middle  west  to  the 
Pacific  Coast,  a  differential  between  the  carload  and 
less  than  carload  of  fifty  per  cent  of  the  carload  rate 
was  prima  jticic  excessive. 

21.    In    re    Western    Classifica-  St.  Louis  v.  Atchison.  T.  &  S.  F. 

tion,  25   I.  C.  C.  442;    Thurber  v.  Ry.  Co.,  9  I.  C.  C.  318:   Duncan  v. 

New  York  Cent.  &  H.  River  R.  Co.,  Atchison,    T.    &    S.    F.    Ry.    Co.    6 

3  I.  C.  C.  473.  I.  C.  C.  85. 

22     Business    Men's    League    of 


410  Duties  to  Interstate  Shippers.  [§  228 

§  228.  Application  of  Carload  Rates  to  Carload  Lots 
when  Goods  Belong  to  Several  Owners.  Ownership  can- 
not be  a  test  as  to  the  applicability  of  rates,  for  diver- 
sity of  ownership  does  not  differentiate  the  service  tlie 
carrier  gives.  Unless  there  is  a  diiference  in  the  con- 
dition of  carriage  there  can  be  no  diiference  iti  charges 
under  Section  2.  The  carrier  deals  with  the  shipment 
that  is  tendered,  not  with  its  ownersliip,  or  its  ultimate 
use.  It  deals  with  the  shipper  who  tenders  it,  not  with  the 
owner  of  the  property  or  the  last  and  most  remote  per- 
son to  whom  it  is  distributed. 

The  provisions  of  the  statute  aimed  at  discrimina- 
tions and  preferences  do  not  permit  a  carrier  to  deny 
the  use  of  a  rate  published  by  distinguishing  between 
those  olTering  shipments  for  transportation.  When, 
therefore,  similar  packages  belonging  to  several  owners 
are  bulked  and  offered  for  shipment  in  carload  lots  under 
one  bill  of  lading  from  a  single  consignor  to  a  single 
consignee,  the  carrier  cannot  legally  charge  a  greater 
sum  for  the  transportation  than  if  the  packages  all  be- 
longed to  one  person. ^^  The  discrimination  denounced 
by  the  statute  refers  to  the  character  of  the  article 
shipped  and  the  carriage,  but  not  to  the  title  of  the 
goods.  The  cost  of  carrying  a  "bulked  shipment"  is 
not  greater  than  when  the  same  amount  of  freight  is 
carried  at  the  instance  of  a  single  owner. 

The  conflict  indicated  in  the  note  between  the  deci- 
sions of  the  Interstate  Commerce  Commission  and  the 
lower  federal  courts  was  settled  in  a  decisive  opinion 
by  the  United  States  Supreme  Court. ^*  Chief  Justice 
White,  speaking  for  the  Court,  said:  "The  contention 
that  a  carrier  when  goods  are  tendered  to  him  for  trans- 
portation can  make  the  mere  ownership  of  the  goods 

23.  Export  Shipping  Co.  v.  merce  Commission,  166  Fed.  499; 
Wabash  R.  Co.,  14  I.  C.  C.  437;  Lundquist  v.  Grand  Trunk  West- 
California  Commercial  Association  ern  Ry.  Co.,  121  Fed.  915. 
V.  Wells,  Fargo  &  Co.,  14  I.  C.  C.  24.  Interstate  Commerce  Com- 
422;  Buckeye  Buggy  Co.  v.  Cleve-  mission  v.  Delaware,  L.  &  W.  R. 
land,  C.  C.  &  St.  L.  Ry.  Co.,  9  I.  Co.,  220  U.  S.  235,  55  L.  Ed.  448, 
C.  C.  620;  Contra:  Delaware,  L.  31  Sup.  Ct.  392. 
&    W.    R.    Co.    V.    Interstate    Com- 


1 


§228]  Unlawkii.  ruEKERENCES  TO  Traffic.  411 

the  test  of  tlio  duly  to  oarry,  or,  what  is  e(|uivaleiit, 
may  discriminate  in  lixinj::  the  cliarge  for  carriers,  not 
upon  an\  diiference  inhciin.i;-  in  the  ^oods  oi-  in  tlie  cost 
of  the  service  I'endcrcd  in  transporting:  them,  l)ut  upon 
the  mere  circumstance  that  tlie  shipper  is  or  is  not  tlie 
real  owner  of  the  p^oods  is  so  in  conflict  witli  the  obvious 
and  elementary  duty  resting-  upon  a  carrier,  and  so  de- 
structive of  the  rig-lits  of  shii)i)ers  as  to  demonstrate  the 
unsoundness  of  the  proposition  by  its  mere  statement.  We 
say  tliis  because  it  is  impossil)]e  to  conceive  of  any  ra- 
tional theory  by  which  such  a  right  could  be  justified 
consistently  either  with  the  duty  of  the  carrier  to  trans- 
port or  of  the  rig-ht  of  a  shipper  to  demand  transporta- 
tion. This  must  be,  since  nothing  in  the  duties  of  a 
common  carrier  by  the  remotest  implication  can  be  held 
to  imply  the  power  to  sit  in  judgment  on  the  title  of 
the  prospective  shipper  who  has  tendered  goods  for 
transportation.  In  fact,  the  want  of  foundation  for  the 
assertion  of  such  a  power  is  so  obvious  that  in  the 
argument  at  l)ar  its  existence  is  not  directly  contended 
for  as  an  original  proposition,  but  is  deduced  by  im- 
plication from  the  supposed  effect  of  some  of  the  pro- 
visions of  the  second  section  of  the  act  to  regulate  com- 
merce. In  substance,  the  contention  is  that  as  the  section 
forbids  a  carrier  from  'charging  a  greater  or  less  com- 
]iensation  for  any  service  rendered  or  to  be  rendered 
in  the  transportation  of  persons  or  property,  *  *  * 
than  it  charges,  demand,  collects  or  receives  from  any 
other  person  or  persons  for  doing  for  him  or  them  a  like 
and  contemporaneous  service  in  the  transportation  of  a 
like  kind  of  traffic  under  substantially  similar  circum- 
stances and  conditions,'  authority  is  to  be  implied  for 
basing  a  charge  for  transportation  upon  ownership  or 
non-ownership  of  the  goods  tendered  for  carriage,  upon 
the  tlieory  that  such  ownership  or  non-ownership  is  a 
dissimilar  circumstance  and  condition  within  the  mean- 
ing of  the  section.  But  this  argument,  in  every  con- 
ceivable aspect,  amounts  only  to  saying  that  a  provision 
of  the  statute  which  was  ])lainly  intended  to  prevent 
inequality  and  discrimination  has  resulted  in  bringing 
about  such  conditions.     Moreover,  the  unsoundness  of 


412  Duties  to  Interstate  Shippers.  [^  228 

the  coiiteiition  is  demonstrated  by  authority.  It  is  not 
open  to  question  that  the  provisions  of  Section  2  of  the 
act  to  regulate  commerce  was  substantially  taken  from 
Section  90  of  the  English  Railway  Clauses  Consolidation 
Act  of  1845,  known  as  the  Equality  Clause.  Texas  & 
Pac.  Railway  v.  Interstate  Com.  Com.,  162  U.  S.  197, 
222.  Certain  also  is  it  that  at  the  time  of  the  passage 
of  the  act  to  regulate  commerce  that  clause  in  the  Eng- 
lish act  had  been  construed  as  onl}"  embracing  circum- 
stances concerning  the  carriage  of  the  goods  and  not 
the  person  of  the  sender,  or,  in  other  words,  that  the 
clause  did  not  allow  carriers  by  railroad  to  make  a 
difference  in  rates  because  of  differences  in  circumstances 
arising  either  before  the  service  of  the  carrier  began 
or  after  it  was  terminated.  It  was  therefore  settled  in 
England  that  the  clause  forbade  the  charging  of  a  high- 
er rate  for  the  carriage  of  goods  for  an  intercepting  or 
forwarding  agent  than  for  others.  Great  Western  R. 
Co.  V.  Sutton,  1869— L.  R.  4  H.  L.  226;  Evershed  v. 
London  &  N.  W.  Ry.  Co.,  1878—3  App.  Cas.  1029,  and 
Denaby  Main  Colliery  Co.  v.  Manchester,  etc.,  Ry.  Co., 
1885 — 11  App.  Cas.  97.  And  it  may  not  be  doubted  that 
the  settled  meaning  which  was  affixed  to  the  English 
Equality  Clause  at  the  time  of  the  adoption  of  the  act 
to  regulate  commerce  applies  in  construing  the  second 
section  of  that  act,  certainly  to  the  extent  that  its  inter- 
pretation is  involved  in  the  matter  before  us.  Wight 
V.  United  States,  167  U.  S.  512;  Interstate  Commerce 
Commission  v.  Alabama  M.  R.  Co.,  168  U.  S.  144,  166." 

§  229.  Wheat  and  Coarse  Grain  Not  "Like  Traffic" 
Requiring  Same  Rate.  If  inequality  results  from  the  ex- 
action of  a  special  late  from  one  shipper  and  a  different 
rate  from  another,  upon  like  traffic  contemporaneously 
transported  under  similar  circumstances,  the  law  is  vio- 
lated. However,  it  has  been  held,  that  wheat,  on  the 
one  hand,  and  rye,  oats  and  other  coarse  grain,  on  the 
other,  do  not  constitute  "like  traffic"  within  the 
meaning  of  the  statute  so  that  a  different  charge  for 
their  contemi^oraneous  transportation  is  not  violative  of 
Section  2.     A   proportional   rate,   therefore,    on   wheat 


§  230]  Unlawful  Preferencks  to  Traffic.  413 

from  Minneapolis  and  Diiliitli,  ]\Iinn.,  to  Chicago  is  not 
unjustly  discriminatory  because  a  higher  rate  obtains 
on  coarse  grains  between  the  same  points."  But  the 
Commission  held  that  all-rail  rate  on  wheat  from  Min- 
neapolis to  New  York  in  excess  of  rates  contempora- 
neously a])plicable  on  flour  between  the  same  points  sub- 
jected a  mill  owner  at  Lockporl  in  Xew  York  to  an  undue 
prejudice.-'' 

§  230.  Different  Uses  to  which  Commodity  is  Put, 
No  Justification  For  Different  Rates.  Inti^rstate  (carriers 
by  railioad  and  all  other  coiinnon  carriers  subject  to 
federal  control  are  ])rohibited  from  basing  a  rate  for 
trans])ortation  u])on  the  consideration  of  the  use  to  which 
the  conunodity  is  i)ut.  Tariffs,  therefore,  which  provide 
for  higher  rates  on  the  same  commodity,  when  based 
upon  the  different  uses  made  of  the  commodity  after 
the  transportation  is  completed,  are  illegal.'"  P'or  ex- 
ample, higher  rates  on  coke  for  foundries  than  for* 
furnaces  were  condemned  by  the  Commission.-*  In 
another  case,  it  appeared  that  a  carrier  concurrently 
maintained  two  rates  upon  nitrate  of  soda,  one  when  for 
use  as  a  fertilizer  and  another  without  restriction  as  to 
use.    The  practice  of  thus  differentiating  rates  was  con- 

25.  Board  of  Trade  of  Chicago  Carter  White  Lead  Co.  v.  Norfolk 
V.  Chicago  &  A.  R.  Co.,  27  I.  C.  C.  &  W^  Ry.,  21  I.  C.  C.  41;  In  e 
530.  Restricted  Rates,  20  I.  C.  C.  426; 

26.  Federal  Milling  Co.  v.  Min-  Anaconda  Copper  Min.  Co.  v.  Chi- 
neapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.,  cago  &  E.  R.  R.,  19  L  C.  C.  592.  21 
27  L  C.  C.  696.  1.  C.  C.  41;     Metropolitan   Paving 

27.  In  re  advances  paper  from  Crick  Co.  v.  Ann  Arbor  R.  R.,  17 
Manitowoc,  etc.,  28  I.  C.  C.  305;  I.  c.  C.  197;  Sligo  Iron  Store  Co. 
Wisconsin  Steel  Co.  v.  Pittsburgh  v.  Atchison,  T.  &  S.  F.  Ry.,  17  I. 
&  L.  E.  R.  R..  27  I.  C.  C.  152;  Coke  c.  C.  139;  Douglas  &  Co.  v.  Chi- 
Producers'  Ass'n  of  Connellsville  cago,  R.  I.  &  P.  Ry.,  16  I.  C.  C. 
region  v.  Baltimore  &  0.  R.  R.,  27  232;  Stowe-Fuller  Co.  v.  Pennsyl- 
I.  C.  C.  125;  Arkansas  Fertilizer  ^^^.^  ^^  ^^  I.  C.  C.  215:  Capital 
Co.  V.  St.  Louis,  I.  M  &  S.  Ry  ^.^^,  ^^^  ^^  ^  ^^^^^^^  ^,  ^^ 
25   I.   C.    C.    645;    St.   Louis   Blast  j    q    n    104 

Furnace  Co  v.  Louisville  &  N.  R. 

R      25    I      C      C.     545;     Virginia-  28.    Coke    Producers'    Ass'n    of 

Carolina  Chemical  Co.  v.  Atlantic  Connellsville  Region  v.  Baltimore 

Coast  Line  R.  R.,  22  T.  C.  C.  394;  &  0.  R.  R.,  27  I.  C.  C.  125. 


41-4  Duties  to  Interstat?:  Shippers.  [§  230 

demnod.-'-'  But  a  different  rate  on  ^'smithing"  coal  than 
on  ordinary  bitmninons  coal,  is  proper  as  there  is  a  real 
difference  in  the  value  of  the  commodities  trans- 
ported.^" 

§  231.  Justifiable  Discrimination  Between  Ship- 
ments of  Oil  in  Barrels  and  in  Tank  Cars.  When  a  com- 
mon carrier  transi)orted  oil  in  barrels  and  also  in  tank 
cars  and  the  use  of  the  tank  cars  was  limited  to  a  cer- 
tain class  of  shippers,  the  Commission  held,  in  an  early 
case,''^  that  a  charge  for  the  barrel  package  in  barrel 
shipments  and  a  failure  to  charge  likewise  for  the  tank 
shipments,  resulting  in  increasing  the  cost  of  transport- 
ing oil  by  barrels,  on  like  quantities  of  oil,  was  an  un- 
just discrimination.  But  the  United  States  Supreme 
Court,  on  appeal  in  the  same  case,  held  that  there  was 
no  preference  or  discrimination  in  charging  a  higher 
rate  for  the  barrel  shipments  than  for  shipments  in  tank 
cars.  It  appeared,  however,  in  this  case  that  the  ship- 
pers had  made  no  demand  for  tank  cars  and  could  not 
have  used  them  in  any  event  on  account  of  not  having 
facilities  for  unloading  the  oil  at  destination  points.^^ 

§  232.  Relationship  of  Rates  on  Lumber  and  Lum- 
ber Products  Must  be  Free  From  Discrimination.  When 
the  same  rate  is  applied  to  lumber  and  lumber  products 
in  one  territory,  carriers  are  guilty  of  unjust  discrimina- 
tion in  maintaining  and  charging  a  differential  in  the 
rates  on  these  respective  classes  of  traffic  in  another  ter- 
ritory unless  the  difference  in  treatment  of  the  same  prod- 
ucts in  different  territories  is  clearly  established.  In 
other  words,  carriers  should  effect  uniformity  in  treat- 
ment in  the  classification  of  lumber  and  lumber  prod- 

29.  Fort  Smith  Traffic  Bureau  v.  31.  Independent  Refiners'  Ass'n 
St.  Louis  &  S.  F.  R.  R.,  13  I.  C.  C.  v  Western  New  York  &  P.  R.  Co., 
6.51.  4  I.  C.  R.  162,  .5  I.  C.  C.  416. 

30.  Sligo  Iron  Store  Co.  v.  Union  32.  Penn  Refining  Co.  v.  Wes- 
P.  R.  R.,  19  I.  C.  C.  527;  Sligo  tern  New  forlt  &  P.  R.  Co.,  208  U. 
Iron  Store  Co.  v.  Atchison,  T.  &  S.  208,  52  L.  Ed.  456,  28  Sup.  Ct. 
S.  F.  Ry.,  17  I.  C.  C.  139.  268. 


§  233]  IIni^wful  Preferences  to  Traffic.  415 

ucts  tlirou<i:lioiit  llie  country.''  Tii  Hie  case  cited,  com- 
plainants, manufacturers  of  sasli  and  doors,  located  in 
Wisconsin,  Iowa  and  Illinois,  contended  that  the  rehi- 
tion  of  sash  and  door  rates  to  lumber  rates  should  Ix' 
the  same  ui)on  the  movements  of  either  i)roducts  to 
points  in  central  freight  association  and  trunk  line  ter- 
ritories as  the  relationship  of  such  rates  from  the  mills 
of  their  comi)etitors  on  the  Pacific  Coast,  and  that  tlie 
lack  of  uniformity  in  the  relationship  caused  unlawful 
discrimination  and  preference.  It  appeared  that  the 
comi)lainants  paid  rates  on  their  products  which  were 
liiglier  that  the  rate  on  lumber,  while  the  Pacific  Coast 
manufacturers  paid  rates  on  their  products  which  were 
the  same  as  the  rates  on  lumber.  The  Commission  held 
that  the  charge  of  unjust  discrimination  in  so  far  as  the 
discrimination  arose  from  the  unequal  treatment  of  lum- 
ber and  lumber  products,  especially  sash  and  doors,  in 
the  competing  territories,  had  been  established. 

§  233.  Differentials  Between  Similar  Commodities 
Justified  by  Different  Conditions  and  Circumstances  Af- 
fecting Transportation — Lumber  and  Logs.  A  differ- 
ential between  similar  commodities  is  often  justifiable 
because  of  the  different  circumstances  and  conditions 
affecting  the  transi)ortation  of  the  commodities.  For 
example,  the  Commission  found  that  a  higher  rate  on 
poles  and  piling  than  on  lumber,  from  Portland,  Or., 
to  San  P'rancisco,  was  not  discriminatory.-''  Such  higher 
rates  were  upheld  because  it  appeared  that  poles  and 
piling  could  only  be  loaded  on  one  kind  of  equi]mient, 
fiat  cars;  that  such  a  condition  necessitated  a  large 
north-bound  movement  of  empty  cars  whereas  lumber 
could  be  loaded  on  ])ractically  every  kind  of  a  car;  that 
lumber  loads  were  heavier  than  piling  and  that  because 
of  heavy  grades  and  sharp  curves,  loads  of  poles  and 
piling  shift  and  recpiire  readjustment,   thereby  causing 

33.  Anson,  Gilkey  &  Hurd  Co.  v.  in  which  the  Commission  reversed 
Southern  P.  Co.,  33  I.  C.  C.  332.  its  former  opinion  reported  in  22 

34.  California  Pole  &  Piling  Co.  I.  C.  C.  507. 
V.  Southern  P.  Co.,  27  ^    C.  C.  6G9, 


416  Duties  to  Interstate  Shippers.  [§  233 

additional  expense  for  inspection  and  labor  wliicli  did 
not  obtain  to  the  same  extent  upon  cars  of  lumber. 

§  234.  Lower  Rates  on  Returned  Shipments  Illegal 
Except  When  Refused  by  Consignees.  Under  the  ac- 
cepted interpretation  of  Section  2  of  the  Interstate  Com- 
merce Act,  a  carrier  subject  to  federal  control,  is  for- 
bidden to  make  a  difference  in  charge  for  services  rend- 
ered contemporaneously  and  under  like  conditions  of  car- 
riage. The  transportation,  for  instance,  of  a  consign- 
ment of  goods  from  St.  Louis  to  Chicago  does  not  differ 
in  any  respect  from  the  transportation  of  another  lot  of 
similar  freight  between  the  same  points  simply  because 
the  latter  consignment  had  been  previously  shipi)ed 
from  Chicago  to  St.  Louis.  The  circumstances  and  con- 
ditions attending  the  two  shipments  are  identical.  Hence, 
there  can  ordinarily  be  no  justification  for  a  lower  rate 
on  return  shipments;  for  the  fact  that  freight  has  been 
shipped  once  and  paid  one  rate,  should  not  be  taken 
into  consideration  in  fixing  charges  for  a  distinct  and 
subsequent  transaction  or  shipment  of  the  same  freight, 
whether  the  transportation  be  backward  or  forward.^' 
The  Commission  has,  therefore,  repeatedly  condemned 
lower  rates  on  return  shipments  as  being  discriminatory 
except  in  cases  where  the  freight  has  been  refused  by 
the  consignee.  In  the  latter  case,  the  return  movement 
is  essentially  a  continuation  of  the  going  movement  and 
may  therefore  be  accorded  lower  than  standard  rates. 
A  provision  in  the  tariffs  that  goods  shipped  in  closed 
packages  may  enjoy  return- shipment  rates  if  tendered 
to  the  carrier  by  the  consignees  within  ten  days,  has 
been  approved.  The  Commission  considered  this  pro- 
vision a  slight  departure  from  the  legal  theory  involved, 

35.  Alabama  &  V.  Ry.  Co.  v.  Miss-  Farmers'  Elevator  Co.  v.  Chicago 

issippi  R.   R.   Commission,  203  U.  G.    W.   Ry.    Co.,    10    I.    C.    C.    650; 

S.  496,  51  L.  Ed.  289,  27  Sup.  Ct.  James  &  Abbott  v.  East  Tennessee, 

163;       Bigbee    &    Warrior    Rivers  V.   &  G.   Ry.   Co.,   3    I.   C.   C.   225, 

Packet  Co.  v.  Mobile  &  O.  R.  Co.,  2  I.  C.  R.  604. 
60      Fed.      545;       Cannon      Falls 


§  234]  Unl.v\v1''ul  Phkfehences  to  Traffic.  417 

but  deemed  it  essential  so  tliat  the  rule  applying  lower 
rates  on  refused  consignments,  might  be  workable  in 
practice. ^° 

36.  Red  River  Oil  Co.  v.  Texas  &  N.  W.  Ry.,  23  I.  C.  C.  432;  In  re 
&  P.  Ry.  Co.,  23  I.  C.  C.  438;  Min-  Returned  SliiiJinents.  19  I.  C.  S. 
neapolis   Traffic   Ass'n    v.   Chicago       409. 


1    Coutr.il    I'lirritTs   L*7 


CHAPTER  XII 

Unjust  Discrimination  and  Unlawful  Peefeeence  in 
Passengee   Service 

Sec.  235.  Federal  Statute  Includes  Passenger  as  Well  as  Freight  Trans- 
portation. 

Sec.  236.  Carrying  Personal  Baggage  of  Passengers  Free  Not  Undue 
Discrimination. 

Sec.  237.  Collection  of  Additional  Fare  on  Trains  From  Passengers 
Without  Tickets  not  Unlawful. 

Sec.  238.  Discrimination  Between  White  and  Colored  Passengers  Un- 
lawful. 

Sec.  239.     Lower  Rates  to  Settlers  Unlawful. 

Sec.  240.  Control  of  Commission  over  Preference  in  Mileage,  Excur- 
sion  and    Commutation   Passenger   Tickets. 

Sec.  241.  Legality  of  Sale  of  Tickets  for  Number  of  Persons  at  Less 
Rate  Than  for  a  Single  Passenger — Party  Rate  Case. 

Sec.  242.  But  Party  Rate  Tickets  Cannot  be  Limited  to  Particular 
Classes  of  Persons. 

Sec.  243.  Distinction  Between  Wholesale  Rates  in  Passenger  and 
Freight   Traffic. 

Sec.  244.  Regulations  Governing  Commutation  Tickets  Must  Not  be 
Discriminative   Between   Classes   of  Persons. 

Sec.  245.  Discrimination  in  Trans-Continental  Passenger  Fares  as  Af- 
fecting Intermediate  Localities. 

§  235.  Federal  Statute  Includes  Passenger  as  Well 
as  Freight  Transportation.  The  words  of  the  Act  ' '  any 
common  carrier  or  carriers  engaged  in  the  transportation 
of  passengers  or  property  wholly  by  railroad,"  etc., 
clearly  indicate  that  a  common  carrier  engaged  in  the 
interstate  transportation  of  either  and  not  necessarily  of 
both,  is  subject  thereto.^  The  statute  prohibiting  unjust 
discriminations  and  undue  preferences,  therefore,  applies 
to  the  tansportation  of  passengers  in  interstate  com- 
merce as  well  as  to  freight  traffic.^ 

1.    Louisville  &  N.  R.  Co.  v.  Mot-  way  &  Bridge  Co.,  17  I.  C.  C.  239; 

tley,  219  U.  S.  467,  55  L.  Ed.  297,  Ligon  v.  St.  Louis  &  S.  F.  R.  Co., 

31  Sup.  Ct.  265,  34  L.  R.  A.  (N.  S.)  184  Mo.  App.  187,  168  S.  W.  647. 
671;  Omaha  &  C.  B.  St.  Ry.  Co.  v.  2.    Interstate     Commerce     Com- 

Interstate  Commerce  Commission,  mission  v.  Baltimore  &  O.  R.  Co., 

191  Fed.  40;    West  End  Improve-  145   U.   S.   263,   36   L.   Ed.   699,   12 

ment  Club  v.  Omaha  &  C.  B.  Rail-  Sup.  Ct.  844;  Interstate  Commerce 

(418) 


§  2'M  \       DiscKiMiNA'iioN  I.N  Passkn(jer  Skrvice.  419 

§  236.  Carrying  Personal  Baggage  of  Passengers 
Free  Not  Undue  Discrimination,  'l^ic  lnt<'rsta1i'  Com 
.merce  Act  does  not  I'oihid  all  disci-iininations,  but  only 
tlioso  wliicli  ai"o  undue.  Such  discrimination  tlicicforc 
as  may  be  involved  in  the  carrying  of  ])ersonal  ba,Lr^^a<i:(' 
of  a  passenger  without  extra  cliarge  is  not  undue  and 
the  i)ractice  is  therefore  lawful.''  In  the  case  cited,  it 
appeared  that  the  complainant  was  a  manufacturer  who 
sent  out  traveling  salesmen  carrying  sample  trunks 
weighing  about  1250  ])ounds.  The  railroad  company 
treated  these  trunks  as  baggage,  deducted  150  pounds 
and  collected  an  excess  charge  for  the  balance.  It  was 
contended  that  it  was  illegal  for  the  carrier  to  accord 
free  transportation  for  any  amount  of  baggage  for  the 
reason  that  if  the  carrier  charged  for  all  baggage  trans- 
ported, the  rates  on  excess  baggage  could  thereby  be 
reduced,  but  the  Commission  held  that  there  was  noth- 
ing illegal  in  the  free  transi)()rtation  of  a  certain  amount 
of  personal  baggage. 

§  237.  Collection  of  Additional  Fare  on  Trains 
From  Passengers  Without  Tickets  not  Unlawful.  In 
the  absence  of  a  prohibiting  statute,  a  carrier  nuiy  law- 
fully prescribe  and  enforce  a  rule  requiring  passengers 
who  have  the  opportunity  aiul  who  neglect  to  purchase 
tickets  at  stations  before  embarking  on  trains,  to  pay 
additional  fare  on  the  trains  if  proper  conveniences  and 
facilities  are  furnished  them  for  procuring  tickets.*  A 
regulation,  therefore,  in  a  i»assenger  tariff  re(|uiring  con- 

Commissioa  v.  Baltimore  &  O.  R.  4.  Georgia.  Phillips  v.  South- 
Co.,  43  Fed.  37;  In  re  Regulation  em  Ry.  Co.,  114  Ga.  284,  40  S.  E. 
Governing  Sale  of  Commutation  268;  Coyle  v.  Southern  Ry.  Co.. 
Tickets,  17  I.  C.  C.  144;  Hewins  v.  112  Ga.  121,  37  S.  E.  163;  Central 
New  York,  N.  H.  &  H.  R.  Co.,  10  Railroad  &  Banking  Co.  v.  Strick- 
I  C.  C.  221;  Cist  v.  Michigan  Cent.  land.  90  Ga.  562,  IG  S.  E.  352; 
R.  Co.,  10  I.  C.  C.  217;  Elvey  v.  Georgia  Southern  &  F.  R.  Co.  v. 
ininois  Cent.  R.  Co..  2  I.  C.  R.  804,  Asmore,  88  Ga.  529,  16  L.  R.  A. 
3  I.  C.  C.  652;  Heard  v.  Georgia  53,  15  S.  E.  13. 
R.  Co.,  1  I.  C.  R.  719,  1  I.  C.  C.  Indiana.  Sage  v.  Evansville  &  T. 
428.  H.  R.  Co.,  134  Ind.  100.  33  N.  E. 
3.  Herbeck-Demer  Co.  v.  Baltl-  771 ;  Lake  Erie  &  W.  R.  Co.  v. 
more  &  0.  R.  Co.,  17  I.  C.  C.  88.  :\iays,   4   Ind.   App.   413,   30   N.   E. 

1106. 


420  Duties  to  Interstate  Shippers.  [§  237 

ductors  to  collect  fares  on  trains  from  passengers  with- 
out tickets  by  adding  twenty-five  cents  to  single  trip 
rates,  was  held  to  be  non-discriminatory  as  to  a  pass- 
enger who  was  compelled  to  pay.'' 

§  238.  Discrimination  Between  White  and  Colored 
Passengers  Unlawful.  The  right  of  a  carrier  to  segre- 
gate white  and  colored  passengers  has  been  established 
by  the  controlling  decisions  of  the  United  States  Su- 
preme Court."  The  separation,  therefore,  of  white  and 
colored  passengers  paying  the  same  fare  is  not  unlawful 
if  cars  and  accommodations  equal  in  all  respects  are 
furnished  to  both  and  the  same  care  and  protection  of 
passengers  is  observed.^  If  a  railroad  company  provides 
certain  facilities  and  accommodations  for  the  first-class 
passengers  of  the  white  race,  like  accommodations  must 
be  jDrovided  for  colored  passengers  of  the  same  class.^ 

§  239.     Lower  Rates  to  Settlers  Unlawful.     In  the 

transportation  of  passengers'  carriers  are  performing  a 
public  duty  and  are  subject  to  the  rules  of  law  which 
require  absolute  impartiality  to  all,  when  the  circum- 
stances and  conditions  are  substantially  the  same.  The 
fact  that  their  own  interests  may  be  joromoted  to  some 

Maine.    State  v.  Goold,  53  Maine,  6.    McCabe  v.  Atchison,  T.  &  S. 

279.  F.  R.  Co.,  235  U.  S.  151,  59  L.  Ed. 

Missouri,     Cross  v.  Kansas  City,  169,  35  Sup.  Ct.  69;   Chesapeake  & 

Ft.  S.  &  M.  Ry.  Co.,  56  Mo.  App.  O.  R.  Co.  v.  Com.,   179  U.   S.  388, 

664.  45   L.    Ed.   244;    21    Sup.   Ct.   101; 

Mississippi.    Rivers    v.     Kansas  Plessy  v.  Ferguson,  163  U.  S.  537, 

City,  M.  &  B.  R.  Co.,  8C  Miss.  571,  41   L.   Ed.   256,   16   Sup.   Ct.   1138; 

38  So.  508.  Louisville,  N.   O.  &  T.  Ry.  Co.  v. 

North  CaroUna.        Ammons      v.  State,  133  U.  S.  587,  33  L.  Ed.  784, 

Southern  R.  Co..  138  N.  C.  555,  3  10  Sup.  Ct.  348:   Hall  v.  De  Cuir, 

Ann.   Cas.   886,   51   S.   E.    127,    140  95  U.  S.  485,  24  L.  Ed.  547. 
N.  C.  196.  52  S.  E.  731.  7.    Gaines  v.  Seaboard  Air  Line 

Texas.    Mills  v.  Missouri.  K.  &  T.  Ry.  Co.,  16  I.  C.  C.  491;   Cozart  v. 

Ry.  Co.  of  Texas,  94  Tex.  242,  55  Southern  Ry.  Co.,  16  I.  C.  C.  236; 

L.  R.  A.  497,  59  S.  W.  874.  Heard  v.  Georgia  R.  Co.,  1  I.  C.  C. 

Vermont.      Stephen  v.  Smith,  29  428,  1  I.  C.  R.  719. 
Vt   160.  8.    Edwards   v.    Nashville,   C    & 

5.     Sidman  v.  Ricbmond  &  D.  R.  St.  L.  Ry.  Co.,  12  I.  C.  C.  247. 
Co..  2  I.  C.  R.  766.  3  I.  C.  C.  512. 


§  240]       Discrimination  in  Passenger  Service.  4:il 

exl(;nt  ])y  swerving-  from  this  rule  cannot  Ix-  regarded 
as  suflicient  to  \Yarraiit  a  dc'i)artuie  fioiii  tlic  obvious 
language  of  the  state.  In  enforcing  this  piinciphi,  tlie 
Interstate  Commerce  Commission  lield  tliat  a  carrier 
liad  no  right  to  sell  tickets  to  prospective  settlers  near 
its  lines  at  rates  lower  than  tickets  were  sold  to  the 
general  pul)lic  between  the  same  points."'  But  in  another 
case,  the  Commission  held  that  there  was  nothing  il- 
legal in  the  action  of  a  railroad  company  in  granting 
lower  rates  to  immigrants  riding  in  immigrant  cars  and 
declining  to  give  the  same  rates  to  other  ])assengers  for 
whom  dii'ferent  cars  and  trains  were  furnished.'"  Said 
the  Commission: 

"In  the  case  ])efore  us  we  have  a  class  of  persons 
readily  distinguishable  from  the  general  i)ublic  and  so 
far  constituting  a  special  class  that  up  to  the  time  when 
they  are  received  u])()n  the  cars  they  are  subject  to  ex- 
ceptional regulations  for  reasons  which,  being  accepted 
as  a  basis  of  legislation,  must  be  deemed  sufficient.  This 
special  class  of  persons  are  given  accomodations  es- 
sentially different  to  those  provided  for  others,  in  cars 
specially  set  apart  for  their  use,  and  which  are  commonly 
made  up  into  trains  by  themselves  and  returned  to  the 
seaboard  empty.  The  service  is  thus  seen  to  be  special, 
and  the  rates  charged  correspond  to  it.  We  cannot  say 
that  under  such  circumstances  the  classing  them  by 
themselves  on  the  rate  sheets  is  either  illegal  or  wrong- 
ful." 

§  240.  Control  of  Commission  over  Preference  in 
Mileage,  Excursion  and  Commutation  Passenger  Tickets. 
While  Section  22  of  the  Interstate  Commerce  Act  pro- 
vides that  nothing  in  the  statute  shall  ])revent  the  is- 
suance of  mileage,  excursion  or  commutation  passenger 
tickets,  the  Commission  has  nevertheless  control  over 
such  fares.  If  any  element  of  discrimination  is  involved 
in  the  construction  of  commutation  fares  or  any  pref- 

9.  Smith  V.  Northern  P.  Ry.  Co.,       Cent.  &  H.  River  R.  Co..  2  I.  C.  C. 
1  I.  C.  C.  208.  338,  2  I.  C.  R.  210. 

10.  Savery  &  Co.  v.  New  York 


422  Duties  to  Interstate  SHiprERS.  [§  240 

orences  result  from  them  as  between  individuals  or  lo- 
calities, the  Commission  has  the  power  to  intervene  to 
redress  the  wrong."  For  example,  the  issuance  of  1,000 
mile  tickets  to  commercial  travelers  at  Twenty  Dollars 
while  at  the  same  time  the  public  was  required  to  pay 
Twenty-five  Dollars  was  held  to  be  an  unjust  discrim- 
ination, as  commercial  travelers  were  not  a  privileged 
class,  and  a  rate  reasonable  for  them  was  also  reasonable 
for  others  to  pay/''  But  where  railroad  companies  volun- 
tarily established  special  excursion  rates  from  points  in 
California  to  the  national  convention  of  two  political 
parties  in  Minneapolis  and  Chicago  not  limited  to  the 
delegates  but  open  to  the  general  public,  it  was  hold 
that  the  same  carriers  were  not  guilty  of  undue  prefer- 
ence in  withholding  open  excursion  rates  to  Omalia 
where  a  convention  of  a  third  national  party  was  held 
a  mouth  later.^^ 

§  241.  Legality  of  Sale  of  Tickets  for  Number  of 
Persons  at  Less  Rate  Than  for  a  Single  Passenger — 
Party  Rate  Case.  An  unjust  discrimination  within  the 
meaning  of  the  statute  is  practiced  when  the  carrier 
charges  or  receives  directly  from  one  person  a  greater 
or  less  compensation  than  from  another,  or  accomplishes 
the  same  thing  indirectly  by  means  of  a  special  rate, 
rebate  or  other  device;  but,  in  either  case,  it  must  be  for 
a  like  and  contemporaneous  service  in  the  transporta- 
tion of  a  like  kind  of  traffic  under  substantially  same 
circumstances  and  conditions. 

In  one  of  the  early  complaints  before  the  Commis- 
sion, it  developed  that  the  Baltimore  and  Ohio  Railroad 
Company  sold  "party  rate  tickets"  whereby  parties  of 
ten  or  more  persons  traveling  together  on  one  ticket 
were  transported  over  its  lines  at  two  cents  per  mile  per 
capita  when  single  passengers  traveling  over  its  road 
for  the  same  distance,  were  required  to  pay  three  cents 

11.  In    re    Commutation    Rate       of    St.    Louis    v.    Missouri    P.    Ry. 
Case,  21  I.  C.  C.  428.  Co.,  1  I.  C.  C.  156,  1  I.  C.  R.  393. 

12.  Larrison  v.  Chicago  &  G.  T.  13.     Cator  v.   Southern     P.  Co., 
Ry.  Co.,  1  I.  C.  C.  147,  1  I.  C.  R.       6  I.  C.  C.  113,  4  I.  C.  R.  497. 
369.     See  also  Associated  Grocers 


§  241  I        DisciMMixATiox  IN  Passenger  Service.  42.'] 

per  mile,  '^riic  railroad  eoiiiitany,  before  the  Commission, 
contended  that  it  was  lawful  to  make  a  charge  per  cai>ita 
for  ])ersons  traveling  on  party  rate  tickets  lower  than 
the  charge  for  a  single  passenger  making  one  trip  be- 
tween the  same  points  because  the  character,  circum- 
stances and  conditions  of  the  service  were  substantially 
different,  and  the  making  of  such  a  lower  charge  for 
parties  of  ten  or  more  subjected  no  person  to  any  undue 
or  uiireas()iial)le  preference  or  advantage.  The  evidence 
disclosed  that  the  party  rate  tickets  were  used  princii)al- 
ly  by  theatrical  companies  but  the  carrier  offered  the 
same  rates  on  the  same  terms  to  the  public  at  large.  The' 
Commission,  however,  held  that  the  sale  of  party  tickets 
for  rates  lower  than  contemporaneous  rates  for  single 
passengers  was  illegal.^*  But  on  an  appeal  from  the  order 
of  the  Commission,  the  Circuit  Court  and  the  national 
Supreme  Court  decided  that  the  practice  did  not  con- 
stitute an  illegal  discrimination  or  an' undue  preference 
for  the  reason  that  there  was  not  a  substantial  identity 
of  circumstances  and  of  services  accompanied  by  a  par- 
tiality resulting  in  an  undue  advantage  to  one  or  an  un- 
due prejudice  to  the  other.^^  "These  tickets  then  being 
within  the  connuutation  principle  of  allowing  reduced 
rates  in  consideration  of  increased  mileage,"  said  the 
Court,  "the  real  question  is,  whether  this  operates  as 
an  undue  or  unreasonable  preference  or  advantage  to 
this  particular  description  of  traffic,  or  an  unjust  dis- 
crimination against  others.     If,  for  example,  a  railway 

14.  Pittsburg,  C.  &  St.  L.  Ry.  circumstances  and  conditions.  In 
V.  Baltimore  &  O.  R.  R.,  3  I.  C.  C.  respect  to  passenger  traffic,  the 
465,  2  I.  C.  R.  729.  positions  of  the  respective  persons, 

15.  Interstate  Commerce  Com-  or  classes,  between  whom  differ- 
mission  v.  I  altimore  &  0.  R.  Co.  ences  in  charges  are  made,  must 
145  U.  S.  263,  3G  L.  Ed.  699,  12  compared  with  each  other,  and 
Sup.  Ct.  844;  Interstate  Commerce  ti^g^e  must  be  found  to  exist  sub- 
Co.,   43    Fed.    37,    in    which    Judge  „,„„,.  ,  . ,      ...       «    -^     ..  ,     . 

. ;    ..r^                 ..,  •     XI-  stantial  identity  of  situation  and  of 
Jackson  said:    To  come  within  the  .   ,  ,      . 
.   ,.,...         o      .,        i-          ,1,     J,,  service  accompanied  bv  irregular- 
inhibition  of  said  sections,  the  dii-  " 

ferences  must  be  made  under  like  *t>'  ^"d  Partially  resulting  in  un- 

conditions;  that  is,  there  must  bo  ^"6   advantage   to   one.   or   undue 

contemporaneous     service    in    the  disadvantage  to  the  other,  in  order 

transportation    of    like    kinds    of  to    constitute    unjust    discrimlna- 

traffic  under  substantially  the  same  tion." 


424  Duties  to  Interstate  Shippers.  [§  241 

makes  to  the  ]niblic  g'enerally  a  certain  rate  of  freight, 
and  to  a  pai'tienhir  individual  residing  in  tlie  same  town 
a  reduced  rate  for  the  same  class  of  goods,  this  may 
operate  as  an  undue  preference,  since  it  enables  the 
favored  party  to  sell  his  goods  at  a  lower  price  than 
his  competitors,  and  may  even  enable  him  to  obtain 
a  complete  monopoly  of  that  business.  Even  if  the  same 
reduced  rate  be  allowed  to  every  one  doing  the  same 
amount  of  business,  such  discrimination  may,  if  carried 
too  far,  operate  unjustly  upon  the  smaller  dealers  en- 
gaged in  the  same  Inisiness,  and  enable  the  larger  ones 
to  drive  them  out  of  the  market.  The  same  result,  how- 
ever, does  not  follow  from  the  sale  of  a  ticket  for  a 
number  of  passengers  at  a  less  rate  than  for  a  single 
i:)assenger;  it  does  not  operate  to  the  prejudice  of  the 
single  passenger,  who  cannot  be  said  to  be  injured  by 
the  fact  that  another  is  able  in  a  particular  instance 
to  travel  at  a  lesst  rate  than  he.  If  it  operates  injurious- 
ly toward  any  one  it  is  the  rival  road,  which  has  not 
adopted  corresponding  rates;  but,  as  before  observed, 
it  was  not  the  design  of  the  act  to  stifle  competition,  nor 
is  there  any  legal  injustice  in  one  person  procuring  a 
particular  service  cheaper  than  another.  If  it  be  law- 
ful to  issue  these  tickets,  then  the  Pittsburg,  Chicago 
and  St.  Louis  Railway  Company  has  the  same  right  to 
issue  them  that  the  defendant  has,  and  may  compete 
with  it  for  the  same  traffic;  but  it  is  unsound  to  argue 
that  it  is  unlawful  to  issue  them  because  it  has  not  seen 
fit  to  do  so.  Certainly  its  construction  of  the  law  is  not 
binding  upon  this  court.  The  evidence  shows  that  the 
same  amout  of  business  done  by  means  of  these  party- 
rate  tickets  is  very  large;  that  theatrical  and  operatic 
companies  base  their  calculation  of  profits  to  a  certain 
extent  upon  the  reduced  rates  allowed  by  railroads;  and 
that  the  attendance  at  conventions,  political  and  religi- 
ous, social  and  scientific,  is,  in  a  great  measure,  determ- 
ined by  the  ability  of  the  delegates  to  go  and  come  at 
a  reduced  charge.  If  these  tickets  were  withdrawn,  the 
defendant  road  would  lose  a  large  amount  of  travel, 
and  the  single-trip  passenger  would  gain  absolutely  noth- 
ing.    If  a  case  were  presented  upon  the  ground  that  it 


*^  '24'A\        DiscitiMixATioN   IN   ] ^^ssK^;(;J•;K  Skhvice.  425 

was  not  intended  for  tlie  use  of  tlie  ^^eneial  piihlic,  l)ut 
solely  for  tlieairical  li'oiijx's,  tJK're  would  be  much  ^n'cater 
reason  for  holding-  lliat  the  latter  were  favored  with  an 
undue  i)reference  or  advantage.'"" 

§  242.  But  Party  Rate  Tickets  Cannot  be  Limited 
to  Particular  Classes  of  Persons.  After  the  decision  of 
the  United  States  Sui)renie  Court  holding-  that  the  sale 
of  i)arty  rate  tickets  did  not  constitute  a  discrimination 
in  violation  of  the  statute,  many  railroads  filed  tariffs 
limiting-  the  ])arty  rates  to  ])articular  classes  of  persons 
such  as  theatrical,  concert,  baseball  and  other  like  organ- 
izations traveling-  together  on  one  i)arty  ticket  for  the 
l)urpose  of  giving  public  entertainments.  Such  a  limita- 
tion on  the  issuance  of  party  tickets  was  held  to  be  an 
unjust  discrimination  under  the  statute;  for  there  can  be 
no  dissimilarity  or  justification  in  charging  more  in 
transporting  a  i)arty  of  ten  persons  l)e]onging  to  an 
amusement  company  than  for  transporting  the  same 
number  of  persons  of  any  occupation  when  carried  in 
the  same  car,  at  the  same  time  and  between  the  same 
points.^'  In  another  case  a  carrier  permitting  the  use 
of  party  rate  tickets  to  amusement  companies  was  found 
guilty  of  unjust  discrimination  when  it  refused  to  trans- 
port a  party  of  detectives  under  the  same  arrange- 
ments.^® 

§  243.  Distinction  Between  Wholesale  Rates  in 
Passenger  and  Freight  Traffic.  The  United  States  Su- 
preme Court  in  the  Party  Rate  case  very  carefully 
pointed  out  the  distinction  between  wholesale  rates  in' 
passenger  tickets  and  in  freight.  Discriminations  based 
solely  on  the  amount  of  freight  shipped  by  two  shi]>i->ers 
under  similar  conditions  are  illegal;  for  it  would  enable 
the  large  and  favored  shipper  to  sell  his  goods  at  a  low^- 
er  ])rice  than  his  competitor  and  thus  enable  him  to  ob- 

16.       Koch     Secret     Service     v.  17.    In    re   Party    Rate    Tickets. 

Louisville  &  N.  R.  R.,  U  I.  C.  C.       12  I.  C.  C.  95. 

523;   Field  v.  Southern  Ry..  13   I.  18.       Koch     Secret     Service     v. 

C-  C.  298.  Louisville  &  N.  R.  Co.,  13  L  C.  C. 

523. 


426  Duties  to  Interstate  Shippers.  [§  243 

tain  a  comparative  monopoly.^^  That  one  man  is  a  large 
shipper,  and  another  a  small  one,  will  not  justify  the 
carrier  in  making  a  difference  in  freight  rates  if  the 
commodity  is  of  a  like  kind  and  is  shipped  nnder  sim- 
ilar circnmstances."'* 

The  fluctuating  views  of  the  courts  on  this  question 
disappeared  to  a  large  degree  after  the  strong  and  force- 
ful opinion  of  the  Commission  in  Providence  Coal  Co. 
V.  Providence  &  W.  R.  Co.,^'  in  which  Commissioner 
Cooley  said:  "But  when  a  question  of  rebates  or  dis- 
counts is  under  consideration,  it  might  be  misleading 
to  consider  them  in  the  light  of  the  principles  which 
merchants  act  upon  in  the  case  of  wholesale  and  retail 
transactions.  There  is  a  very  manifest  difficulty  in 
applying  those  principles  to  the  conveniences  which  com- 
mon carriers  furnish  to  the  public,  a  difficulty  which 
springs  from  the  nature  of  the  duty  which  such  carriers 
owe  to  the  public.  That  duty  is  one  of  entire  partiality 
of  service.  The  merchant  is  under  no  corresponding 
duty,  and  may  make  his  rules  to  suit  his  own  interest, 
and  discriminate  as  he  pleases.  There  is  no  occasion 
to  enlarge  upon  this  now.  A  discrimination  such  as 
the  offer  and  its  acceptance  by  one  or  more  dealers 
would  create,  must  have  a  necessary  tendency  to  des- 
troy the  business  of  small  dealers.  Under  the  evidence 
in  the  case  it  appears  almost  certain  that  this  destruc- 
tion must  result,  the  margin  for  profit  on  wholesale 
dealings  in  coal  being  very  small.  The  discrimination 
is  therefore  necessarily  unjust  within  the  meaning  of 
the  law.  It  cannot  be  supported  by  the  circumstance 
that  the  offer  is  open  to  all;  for  although  made  to  all, 
it  is  not  possible  that  all  should  accept.  Moreover,  in 
testing  such  a  discrimination  we  must  consider  the 
principle  by  which  it  must  be  supported;  and  the  princi- 
ple which  would  support  a  30,000  ton  limitation  would 

19.     Rickards  v.  Atlantic  Coast  field  v.  Lake  Shore  &  M.  S.  Ry.,  2 

Line  R.  Co.,  23  L  C.  C.  239;   Ana-  L  C.  C.  90,  2  L  C.  R.  67. 

conda  Copper  Min.  Co.  v.  Chicago  20.     United   States  v.  Tozer,  39 

&  E.  R.  R.,  19  I.  C.  C.  592;    Car-  Fed.   369;     Kinsley  v.   Buffalo,   N. 

stens  Packing  Co.  v.  Oregon  Short  Y.  &  P.  R.  Co.,  37  Fed.  181. 

Line  R.  Co.,  17  I.  C.  C.  324;    Sco-  21.     1  I.  C.  C.  107,  1  I.  C.  R.  363. 


§  24o|        J)is<Kj.MixVATiON  IN  Passenger  Service.  427 

support  one  of  50,000  or  100,000  eciually  well;  the  quan- 
tity named  would  be  arbitrary  in  any  case.  It  mi^lit 
easily  be  so  high  as  practicably  to  be  open  to  the  largest 
dealer  only.  A  railroad  company,  if  allowed  to  do  so, 
might  in  this  way  hand  /)ver  the  whole  trade  on  its  road 
in  some  necessary  article  of  commerce  to  a  single  deal- 
er; for  it  might  at  will  make  the  discount  o(|ual  to  or 
greater  than  the  ordinary  ])rofit  in  the  trade;  and  com- 
petition by  those  who  could  not  get  the  discount  would 
obviously  be  taken  out  of  the  question.  So  extreme  a 
case  would  not,  however,  be  needful  to  show  the  in- 
admissibility of  such  a  discount  as  is  here  offered;  the 
injustice  would  be  equally  manifest  if  several  dealers 
instead  of  one  were  able  to  accept  the  oifer.  A  railroad 
company  has  no  right,  by  any  discrimination  not  ground- 
ed in  reason,  to  put  any  single  dealer,  whether  a  large 
dealer  or  a  small  dealer,  to  any  such  destructive  disad- 
vantage. In  what  is  said  about  this  we  do  not  mean  to  be 
understood  as  intimating  that  the  defendant  is  not  saved 
something  in  cost  and  in  labor  by  having  the  coal  car- 
ried by  it  received  in  large  quantities  by  single  consign- 
ees. On  the  contrary,  we  readily  agree  that  its  service 
for  large  dealers  is  somewhat  less  in  proportion  to  quan- 
tity of  freight  transported  than  is  the  like  service  per- 
formed for  small  dealers.  We  also  agree  that  defendant 
may  therefore  seem  to  have  an  interest  in  restricting 
its  dealings  so  far  as  possible  to  large  dealers.  But 
this  is  an  interest  that  can  only  be  consulted  and  acted 
u])on  in  strict  subordination  to  the  rules  of  law;  and  one 
of  the  most  important  of  those  rules  is  that  in  any  dis- 
crimination between  dealers  justice,  if  not  a  paramount 
consideration,  shall  at  least  be  kept  in  view.  The  car- 
rier cannot  regard  its  own  interests  exclusively — if  it 
could,  it  might  at  pleasure,  by  methods  easily  available, 
drive  all  small  dealers  off  its  line,  and  center  the  whole 
trade  in  a  few  hands.  The  state  of  things  that  would 
result  might  be  altogether  for  its  interest  and  conven- 
ience, since  it  would  then  have  fewer  customers  to  deal 
with  and  fewer  transactions  for  the  same  aggregate 
trade;  but  the  wrong  would  be  flagrant.  The  case  sug- 
gested is  more  extreme  than  the  one  before  us,  but  the 


428  Duties  to  Interstate  Shippers.  [^  243 

wrong  is  sufficiently  palpable  here.  And  without  fur- 
ther comment  on  tliis  branch  of  the  case  it  will  be  suf- 
ficient to  repeat  that  when  the  defendant  makes  an  offer 
of  discount  or  rebate  based  on  the  30,000  ton  limit,  the 
limitation  is  unreasonable  and  unlawful,  because  neces- 
sarily resulting  in  unjust  discrimination.  There  is  noth- 
ing in  the  showing  in  this  case  to  justify  the  fixing  of 
a  limitation  as  the  ground  of  rebate  at  any  specified 
quantity;  and  therefore  if  the  discount  is  paid  to  one 
dealer,  the  payment  will  be  evidence  of  the  right  of  all 
other  dealers  to  a  like  and  proportionate  discount." 

§  244.  Regulations  Governing  Commutation  Tickets 
Must  Not  be  Discriminative  Between  Classes  of  Persons. 
Carriers  subject  to  the  statute  have  no  right  to  fix  dif- 
ferent rates  for  the  transportation  of  persons  over  the 
same  line,  between  the  same  points  under  substantially 
similar  circumstances  and  conditions.  An  arrangement, 
therefore,  by  which  a  railroad  company  oifers  monthly 
commutation  tickets  to  pupils  who  attend  schools  of  a 
certain  kind  or  class  and  specifically  excludes  pupils 
attending  various  other  kinds  of  schools  from  the  ben- 
efit thereof,  is  unjustly  discriminatory. 

But  carriers  may  lawfully  offer  and  sell  commuta- 
tion tickets  to  all  children  or  young  persons  between 
certain  stated  ages.  Such  a  regulation  will  provide  de- 
sired rates  for  school  pupils  and  will  not  exclude  other 
children  traveling  under  substantially  similar  conditions 
for  the  purpose  of  securing  other  lines  of  instruction, 
or  on  other  missions.  It  will  also  protect  against  the 
use  of  such  tickets  by  adults.  A  railroad  company  has 
no  right  to  inquire  into  the  mission,  errand  or  business 
of  a  passenger  as  a  condition  for  fixing  the  transporta- 
tion rate  which  such  passenger  shall  pay.^^ 

§  245.  Discrimination  in  Trans-Continental  Pass- 
enger Fares  as  Affecting  Intermediate  Localities.  Pass- 
enger fare  adjustments  ova^r  different  routes  between  im- 
portant cities  and   localities  may  not   only  operate   to 

22.     In  re  Regulations  Govern-      ing  Sale  of  Commutation  Tickets 

to  School  Children,  17  I.  C.  C.  144. 


§  245]       Discrimination  in  Passenger  Service.  429 

the  prejudice  of  passengers  but  may  also  unduly  i)re- 
judice  intermediate  communities  and  localities  between 
the  two  points  when  libeial  stop-over  privileges  are 
accorded.  Thus,  in  Public  Service  Commission  of  Wash- 
ington and  others  vs  the  Trans-Continental  Carriers," 
it  appeared  in  evidence  that  there  were  three  different 
routes  between  Chicago,  111.  and  San  Francisco,  the 
northern  through  Seattle  and  Portland,  the  central 
through  Ogdeu  and  the  southern  through  El  Paso  and 
New  Orleans.  The  all-year  excursion  fare  on  the  south- 
ern route  was  $110  for  the  round  tri])  and  over  the 
northern  route,  $128  for  the  round  trip. 

A  similar  differential  between  the  two  routes  was 
found  to  exist  in  summer  tourist  excursion  fares.  The 
complainants,  representing  cities  and  communities  in 
the  states  of  Oregon  and  Washington,  urged  that  the 
higher  fares  on  the  northern  route  operated  to  the  un- 
due prejudice  and  disadvantage  of  localities  served  by 
the  northern  carriers  in  Washington  and  Oregon,  and 
that  the  lower  fares  available  to  travelers  on  the  central 
and  southern  routes  gave  an  undue  preference  and  ad- 
vantage to  localities  served  by  the  carriers  participating 
in  those  routes.  Upon  a  consideration  of  all  the  facts, 
the  Commission  held  that  both  the  all-year  excursion 
passenger  fare  and  the  summer  tourist  excursion  fares 
from  Chicago  to  San  Francisco  applicable  in  either 
direction  by  way  of  Seattle,  Wash.,  or  Portland,  Or., 
to  the  extent  that  they  exceeded  the  corresponding  fares 
in  effect  in  either  direction  by  New  Orleans  and  El  Paso 
were  unduly  prejudicial  to  the  localities  served  by  the 
northern   carriers. 

23.    Public  Service  Commission      of  Washington  v.  Alabama  &  Vicks- 

burg  Ry.  Co.,  42  I.  C.  C.  54. 


CHAPTER  XIII. 

Filing  and  Publication  of  Interstate  Rates,  and 
Effect  Thereof 

Sec.  246.  Publicity  and  Permanency  of  Rates  and  Cliarges  of  Com- 
mon Carriers  at  Common  Law. 

Sec.  247.  Publication,  Certainty  and  Stability  of  Rates  Necessary  to 
Eliminate  Rebates  and  Discriminations. 

Sec.  248.  The  Act  to  Regulate  Commerce  on  Publicity  of  Rates  and 
Adherence  Thereto. 

Sec.  249.  Purpose  of  Congress  in  the  Passage  of  the  Provisions  of  Sec- 
tion 6  of  the  Act. 

Sec.  250.  Publication  and  Piling  of  all  Rates,  Fares  and  Charges  for 
Interstate  Transportation  Mandatory. 

Sec.  251.  Necessary  Steps  to  Put  Rates  Legally  in  Force — Posting  not 
Essential. 

Sec.  252.  What  the  Schedules  of  Rates,  Pares  and  Charges  Filed  with 
the  Commission  Must  Contain. 

Sec.  253.  Privileges  or  Facilities  Furnished  Shippers  and  Not  Speci- 
fied in  Tariffs  Unlawful. 

Sec.  254.  Regulations  Concerning  Baggage  of  Interstate  Passengers 
Must  be  Published. 

Sec.  255.  Demurrage  Charges  on  Interstate  Shipments  Must  be  Filed 
with  Commission. 

Sec.  256.  No  Charges  in  Rates,  Fares  and  Charges  Permitted  Without 
Thirty  Days   Notice  to  the  Commission. 

Sec.  257.  Carriers  Prohibited  from  Departing  to  any  Extent  from 
Published  Schedules  of  Rates  and  Charges  Filed  with 
Commission. 

Sec.  258.  Foregoing  Rule  Equally  Applicable  to  Transit  and  Special 
Services   Provided   in   Tariffs. 

Sec.  259.  Forwarders  are  Shippers  within  Statute  Prohibiting  Re- 
funds from  Published  Rates  and  Charges. 

Sec.  260.  Oral  Contracts  or  Special  Arrangements  for  Interstate  Trans- 
portation Contravening  Published   Schedules  Unlawful. 

Sec.  261.  Shippers  and  Passengers  Conclusively  Presumed  to  Have 
Knowledge  of  Published  Schedules  of  Rate^,  Fares  and 
Charges. 

Sec.  262.  Courts  Bound  by  Published  Rates  and  Charges  Until  Set 
Aside  by  Commission. 

Sec.  263.  Carriers  Must  Collect  the  Scheduled  Rates  and  Charges  foi 
Interstate  Transportation. 

Sec.  264.  Illustrative  Cases  Wherein  the  Foregoing  Rule  was  Applied 
and  Enforced. 

Sec.  265.  Defense  of  Estoppel  to  Actions  Against  Shippers  for  Under- 
charges. 

(430) 


§  24GJ  Filing  and   I^uhlication  of  Kates.  4.">1 

Sec.  266.  Penalty  for  Making  Erroneous  Quotation  of  Rate  When 
Shipper  is  Damaged  Thereby. 

Sec.  267.  In  Actions  to  Collect  Scheduled  Rate.s  Counterclaims  for 
Damages  to  Goods  Prohibited. 

Sec.  268.  Damages  Not  Recoverable  for  Failure  to  Post  Rates  at  Sta- 
tions. 

Sec.  269.  Rule  Stated  in  Foregoing  Paragraph  Illustrated  in  Adjudi- 
cated Cases. 

Sec.  270.  Shipper  May  Recover  Damages  for  Collection  cf  Rate  in 
Excess  of  that  Fixed  by  Schedule. 

Sec.  271.  Nothing  but  Money  May  be  Lawfully  Received  for  Transpor- 
tation of  Either  Passengers  or  Property. 

Sec.  272.  Acceptance  of  Promissory  Notes  in  Payment  for  Freight 
Charges  Unlawful. 

Sec.  273.  Separately  Established  Rates  must  be  Published  in  Ab- 
sence of  Joint  Rates  over  Through  Route. 

Sec.  274.  When  Through  Rate  is  Made  up  of  Sum  of  Locals,  Rates  in 
ElTect  on  Date  of  Shipments  Apply. 

Sec.  275.  Departure  from  Published  Tariffs  Permitted  in  Performance 
of  Private  Duties  by  Carriers. 

Sec.  276.  Rates  for  Passage  of  Vehicles  on  Railroad  Ferries  Must  be 
Filed. 

§  246.  Publicity  and  Permanency  of  Rates  and 
Charges  of  Common  Carriers  at  Common  Law.  While 
at  coinmon  law  excessive  rates  and  unjust  discrimina- 
tions between  shippers  under  similar  circumstances 
were  prohibited,  there  were  no  requirements  as  to  the 
publicity  of  rates  and  charges  for  transportation,  and 
no  method  of  enforcing  any  i)ermanency  and  stability 
in  rate  schedules.  A  fixed  standard  of  charge  which  all 
shippers  could  ascertain  did  not  exist.  Carriers,  there- 
fore, could  change  their  rates  of  transportation  at  pleas- 
ure and  without  i)ublic  notilication.  The  obligation  of 
publicity  and  stability  in  rates  was  not  recognized  and 
the  shippers  were,  therefore,  without  tlie  proper  means 
of  judging  whether  the  charges  for  railroad  service  were 
reasonable  or  just.  Under  this  regime  constant  disturb- 
ances of  rates  were  common  and  merchants  were  often 
unable  to  execute  long-time  contracts  with  any  assurance 
as  to  what  the  rate  would  continue  to  be. 

§  247.  Publication,  Certainty  and  Stability  of 
Rates  Necessary  to  Eliminate  Rebates  and  Discrimina- 
tions.    One  of  the  chief  objects  of  the  Act  to  Regulate 


432  Duties  to  Interstate  Shippers.  [§  247 

Commerce  was  the  suppression  of  discriminations  and 
preferences  between  shippers  and  localities.  Publicity 
of  rates  is  a  strong  factor  in  the  correction  of  the  evils 
of  unjust  discriminations,  extortion  and  unlawful  pref- 
erences; for,  by  this  means,  a  record,  open  to  public  in- 
spection, may  be  kept  of  rates  as  they  actually  exist, 
A  shipper  can  ascertain  for  himself  what  the  rates  are, 
and  he  can  also  determine  what  the  cost  of  transporta- 
tion will  be  to  his  competitor.  A  system  of  rates,  open 
to  all,  and  fixed  and  certain  so  that  all  shippers  might 
ascertain  from  the  tariff  just  what  the  rate  is,  is  far 
more  equitable  than  a  system  of  special  contracts  and 
arrangements  so  prevalent  before  the  Interstate  Com- 
merce Act  was  passed.  A  taritf  filed  and  published 
which  the  carrier  is  required  to  adhere  to  and  which 
cannot  be  changed  without  proper  notice  to  the  shipping 
public,  is  an  effective,  if  not,  in  fact,  the  only  method  of 
securing  transportation  service  to  the  public  on  equal 
terms. 

Stability  and  permanency  of  rates  are  of  the  high- 
est importance  to  every  shipper  because  without  ad- 
vance knowledge  of  the  rate,  business  contracts  would 
possess  too  many  elements  of  chance.  In  addition,  the 
foundation  of  efficient  regulation  and  supervision  of 
rates  rests  in  lawfully  established  and  published  charges. 
These  factors  in  the  correction  of  the  evils  of  railroad 
transportation  were  recognized  by  the  Cullom  Commit- 
tee in  its  report  to  Congress  recommending  the  passage 
of  the  bill  which  later  became  the  Interstate  Commerce 
Act.  The  committee  said:^  "In  the  judgment  of  the 
committee  one  of  the  chief  purposes  of  any  legislation  for 
the  regulation  of  inter-State  commerce  should  be  to  se- 
cure the  fullest  publicity,  both  as  to  the  charges  made 
by  common  carriers  and  as  to  the  manner  in  which  their 
business  is  conducted.  The  business  of  a  common  car- 
rier concerns  practically  the  whole  public,  and  the  car- 
rier exercises  in  some  respects  a  jmblic  function.     The 

1.     Senate  Report  No.   46,   49th      Congress,  1st  Session,  Part  1,  Page 

198. 


§  248J  Filing  and  I'uijlkjatkjx  of  Kates.  433 

])eople  rififlitly  feel  that  its  charges  should  be  public 
and  open  to  all  alike,  and  that  they  should  be  fully  in- 
formed as  to  its  financial  condition,  its  methods  of  oper- 
ation, and  the  net  results  of  its  business,  to  the  end  tliat 
an  intellii^-ent  jud,i!:ment  may  be  formed  as  to  whether 
the  charges  made,  which  are  in  the  nature  of  a  tax 
upon  commerce  and  industry,  are  reasonable  and  equita- 
bly adjusted.  They  ri,e:htfully  demand  the  o])])ortunity  to 
jn'ocure  this  information,  and  it  is  believed  that  the 
methods  of  regulation  suggested  by  tlic  conimitlcc  in  the 
accomi)anying  bill  will  provide  the  means  by  which  such 
information  can  best  and  most  readily  be  obtained.  It 
is  agreed  by  all  who  have  given  the  subject  of  railroad 
regulation  attention  that  the  maintenance  of  stable  aixl 
reasonably  uniform  rates  is  of  the  lirst  importance  and 
greatly  to  be  desired.  Neither  result,  it  is  also  agreed, 
can  be  secured  without  i)ublicity,  which  is  the  surest 
and  most  etfective  preventive  of  unjust  discrimination. 
Whenever  rates  are  fluctuating  and  not  alike  to  all,  it 
is  the  rule  that  some  portions  of  the  commercial  com- 
munity obtain  secret  advantages  over  the  remainder. 
When  unjust  discriminations  are  practiced  by  the  carrier, 
success  in  business  depends  more  upon  favoritism  (if 
nothing  worse)  than  upon  intelligence,  integrity,  and 
enteri)rise.  The  effect  iiS  demoralizing  in  the  extreme. 
Business  is  conducted  upon  a  false  basis,  false  standards 
of  commercial  honor  are  erected,  and  a  i)remium  is  of- 
fered to  corruption.  Worst  of  all,  the  advantages  of 
unjust  discrimination  are,  as  a  rule,  enjoyed  by  those 
who  least  need  outside  aid,  and  the  inevitable  effect  of 
this  indefensible  practice  is  to  build  up  the  larger  deal- 
er and  crush  out  the  smaller,  to  foster  monopoly,  and, 
in  short,  to  encourage  the  existing  tendency,  already 
too  strong,  towards  the  concentration  of  capital  and  the 
control  of  commerce  in  the  hands  of  the  few." 

§  248.  The  Act  to  Regulate  Commerce  on  Publicity 
of  Rates  and  Adherence  Thereto.  The  duties  and  obli- 
gations of  carriers  under  federal  control  as  to  the  print- 
ing, liling  and  i)ublication  of  their  rates,  fares  and  charg- 
es for  all  transportation  service  within  the  terms  of  the 

1    Coiiti'il    Carriers    2S 


-to-t  Duties  to  Interstate  Shippers.  [§  248 

statute,  too-other  with  the  requirements  as  to  the  obser- 
vance of  the  rates  and  charges  so  iixed,  and  the  nnlaw- 
fnlness  of  any  deviations  therefrom,  are  set  forth  in 
Section  6  of  the  Act.  Tlie  provisions  contained  therein, 
with  the  rights  of  shippers  and  the  liabilities  of  car- 
riers thereunder,  will  be  discussed  in  this  chapter.  No 
section  of  the  act  has  been  more  frequently  amended 
than  this  one.  The  entire  section  was  recast  and  rewrit- 
ten in  its  passage  as  a  part  of  the  Hepburn  Act  of  1906. 
The  decisions  of  the  courts  construing  the  provisions 
of  Section  6  should  be  considered  in  the  light  of  these 
amendments.  Many  of  the  rulings  of  the  Commission 
and  the  courts  are  now  obsolete  because  of  the  changes 
made  in  the  form  of  amendments.  From  1889  to  1906 
advances  in  rates  were  permitted  on  ten  days  public 
notice,  and  reductions  on  three  days    notice. 

Under  the  Hepburn  Act  of  1906,  no  changes  can 
be  made  except  after  thirty  days  notice,  but  the  Com- 
mission is  empowered  to  modify  this  requirement  upon 
good  cause  shown.  The  Hepburn  Act  also  requires  the 
schedules  filed  with  the  Commission  to  show  not  only 
the  terminal  charges  and  rules  and  regulations  which 
affect  rates  as  required  by  the  original  act,  but  also 
storage,  icing  and  all  other  charges  which  the  Commis- 
sion might  require,  and  all  privileges  and  facilities 
granted  or  allowed  as  well  as  the  value  of  any  service 
rendered  to  a  passenger  or  shipper.  The  original  Act 
jorohibited  all  carriers  from  receiving  a  greater  or  less 
compensation  than  the  rate  on  file;  the  Hepburn  Act 
prohibits  carriers  from  receiving  a  greater  or  less  or 
different  compensation.^  The  last  four  paragraphs  of 
Section  6  were  added  by  an  amendment  in  1910. 

2.  See  Louisville  &  N.  R.  Co.  v.  greater  or  less  or  different  com- 
Mottley,  219  U.  S.  467,  55  L.  Ed.  pensation'  for  the  transportation 
297,  31  Sup.  Ct.  265,  34  L..  R.  \.  of  persons  or  property,  or  for  any 
(N.  S.)  671,  in  which  the  court  service  in  connection  therewith, 
said:  "But  the  act  of  June  29,  than  the  rates,  fares  and  charges 
1906  made  a  material  addition  to  specified  in  the  tariff  filed  and  in 
the  words  of  the  ad  of  1887;  for,  effect  at  the  time.  We  cannot  sup- 
it  expressly  prohibited  any  car-  pose  that  this  change  was  without 
rier,  unless  otherwise  provided,  to  a  dislinct  purpose  on  the  part  of 
demand,     collect     or     receive     'a  Congress.     The   words   'or   differ- 


§  249 


Filing  and   Publication  of  Rates, 


435 


§  249.  Purpose  of  Congress  in  the  Passage  of  the 
Provisions  of  Section  6  of  the  Act.  Tlie  purpose  of 
Congress  in  the  enactment  of  the  iJiovisions  of  Section 
G  was  to  re<]uire  (Mjual  and  unifoini  treatment  to  all 
shippers  by  charging  but  one  rate  to  all  for  similar  ser- 
vices,  being   the   rate   hied   with    the   Commission   and 


ent,'  looking  at  the  context,  cannot 
be  regarded  as  superfluous  or 
meaningless.  We  must  have  re- 
gard to  all  the  words  used  by  Con- 
gress, and  as  far  as  possible  give 
effect  to  them.  Market  v.  Holt- 
man,  101  U.  S.  112,  115.  The  his- 
tory of  the  acts  relating  to  com- 
merce shows  that  Congress,  when 
introducing  into  the  act  of  1906 
the  word  'different,'  had  in  mind 
the  purpose  of  curing  a  defect  in 
the  law  and  of  suppressing  evil 
practices  under  it  by  prohibiting 
the  carrier  from  charging  or  re- 
ceiving compensation  except  as  in- 
dicated in  its  puhlishcd  tariff.  11th 
Ann.  Rep.  Interstate  Com.  Com., 
141;  19th  lb.  78,  15;  40  Cong.  Rec. 
Pt.  7,  p.  6608;  lb.  6617;  lb.  7428, 
7434;  Rept.  of  Confer.  Com.  40 
Cong.  Rec.  9522;  42  Cong.  Rec. 
Pt.  2,  p.  1746.  In  our  opinion,  af- 
ter the  passage  of  the  commerce 
act  the  railroad  company  could 
not  lawfully  accept  from  Mottley 
and  wife  any  compensation  'dif- 
ferent' in  kind  from  tl  at  mention- 
ed in  its  published  schedule  of 
rates.  And  it  cannot  be  doubted 
that  the  rates  or  charges  specified 
in  such  schedule  were  payable  on- 
ly in  money.  They  could  not  be 
paid  in  any  other  way,  without 
producing  the  utmost  confu.sion 
and  defeating  the  policy  establish- 
ed by  the  acts  regulating  com- 
merce. The  evident  purpose  of 
Congress  was  to  establish  uniform 
rates  for  transportation,  to  give 
all  the  same  opportunity  to  know 


what  the  rates  were  as  well  as  to 
have  the  equal  benefit  of  them.  To 
that  end  the  carrier  was  required 
to  print,  post  and  file  its  schedules 
and  to  keep  them  open  to  public 
inspection.  No  change  could  be 
made  in  the  rates  embraced  by  the 
schedules  except  upon  notice  to 
the  Commission  and  to  the  pulilic. 
But  an  examination  of  the  sched 
ules  would  be  of  no  avail  and  would 
not  ordinarily  be  of  any  prac- 
tical value  if  the  published  rates 
could  be  disregarded  in  special  or 
particular  cases  by  the  acceptance 
of  property  of  various  kinds,  and 
of  such  value  as  the  parties  im- 
mediately concerned  chose  to  put 
upon  it,  in  place  of  money  for  the 
services  performed  by  the  carrier. 
That  money  only  was  receivable 
for  transportation  is  the  basis  up- 
on which  the  Interstate  Commerce 
Commission  has  proceeded;  for,  in 
one  of  its  Conference  Rulings 
(207)  issued  in  1909,  the  Commis- 
sion held  that  nothing  but  money 
could  be  lawfully  received  or  ac- 
cepted in  payment  for  transporta- 
tion, whether  of  passengers  or 
property,  for  any  service  connected 
therewith,  it  being  the  opinion  of 
the  Commission  that  the  prohibi- 
tion against  the  charging  or  col- 
lecting a  greater  or  less  or  (lifer- 
ent compensation  than  the  estab- 
lished rates  or  fares  in  effect  at 
the  time  precludes  the  acceptance 
of  service,  property  or  other  pay- 
ment in  lieu  of  the  amount  speci- 
fied   in   the   published   schedules." 


436 


Duties  to  Interstate  Shippers. 


[§  249 


l)iil)lislied  as  required  by  the  statute;^  to  establish  uni- 
form rates  for  transportation  so  that  all  might  have 
the  same  opportnnit}'  to  know  what  tlie  rates  are  as 
well  as  to  have  the  equal  benefit  of  them,  by  means  of 
printing,  posting,  filing  and  keeping  open  to  public  in- 
spection the  schedules  of  the  carriers;*  to  secure  to  the 
public  knowledge  of  the  rates  to  be  charged  for  services 
rendered;^  to  prevent  departures  from  schedules  and 
rates  filed  with  the  Commission  through  oral  agree- 
ments, special  contracts  or  other  devices;*^  to  make  the 
public  tariff  rate  binding  on  shippers  and  carriers  alike ;^ 
to  prohibit  all  means  that  might  be  resorted  to,  to  ob- 
tain or  receive  concessions  and  rebates  from  the  fixed 
rates  duly  posted  and  published;^  to  suppress  unjust 
discriminations,  undue  preferences  and  secret  agreements 
as  to  interstate  rates  by  requiring  that  such  rates  be  es- 
tablished in  a  manner  calculated  to  give  them  publicity, 


3.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Robinson,  233  U.  S.  173,  58  L.  Ed. 
901,  34  Sup.  Ct.  556;  Pennsylvania 
R.  Co.  V.  International  Coal  Min. 
Co.,  230  U.  S.  184,  57  L.  Ed.  1446, 
33  Sup.  Ct.  893,  Ann.  Cas.  1915A 
315;  Santa  Fe,  P.  &  P.  Ry.  Co.  v. 
Grant  Bros.  Const.  Co.,  228  U.  S. 
177,  57  L.  Ed.  787,  33  Sup.  Ct.  474; 
Illinois  Cent.  R.  Co.  v.  Henderson 
Elevator  Co.,  226  U.  S.  441,  57  L. 
Ed.  290,  33  Sup.  Ct.  176;  Chicago  & 
A.  R.  Co.  V.  Kirby,  225  U.  S.  155, 
56  L.  Ed.  1033,  32  Sup.  Ct.  648, 
Ann.  Cas.  1914A  501;  Chicago,  I. 
&  L.  R.  Co.  V.  United  States,  219 
U.  S.  486,  55  L.  Ed.  305,  31  Sup. 
Ct.  272;  New  York  Cent.  &  H. 
River  R.  Co.  v.  United  States, 
212  U.  S.  500,  53  L.  Ed.  624,  29 
Sup.  Ct.  309;  Armour  Packing  Co. 
V.  United  States,  209  U.  S.  56,  52 
L.  Ed.  681,  28  Sup.  Ct.  428;  Texas 
&  P.  R.  Co.  V.  Abilene  Cotton  Oil 
Co.,  204  U.  S.  426,  51  L.  Ed.  553,  Z7 
Sup.  Ct.  350,  9  Ann.  Cas.  1075; 
Texas  &  P.  R.  Co.  v.  Mugg,  202  U. 
S.  242,  50  L.  Ed.  1011,  26  Sup.  Ct. 


628;  New  York,  N.  H.  &  H.  R. 
Co.  v.  Interstate  Commerce  Com- 
mission, 200  U.  S.  361,  50  L.  Ed. 
515,  26  Sup.  Ct.  272;  Gulf,  C.  &  S 
F.  Ry.  Co.  V.  Hefley,  158  U.  S.  98, 
39  L.  Ed.  910,  15  Sup.  Ct.  802. 

4.  Louisville  &  N.  R.  Co.  v. 
Mottley,  219  U.  S.  467,  55  L.  Ed. 
297,  31  Sup.  Ct.  265,  34  L.  R.  A. 
(N.  S.)  671;  Union  Pac.  R.  Co.  v. 
Goodridge,  149  U.  S.  680,  37  L.  Ed. 
896,  13  Sup.  Ct.  970. 

5.  Schultz-Hansen  Co.  v.  South- 
ern P.  Co.,  18  I.  C.  C.  234. 

6.  Kansas  City  Southern  R.  Co. 
v  Carl,  227  U.  S.  639,  57  L.  Ed. 
683,  33  Sup.  Ct.  391. 

7.  Great  Northern  R.  Co.  v.  O'- 
Connor, 232  U.  S.  508,  58  L.  Ed. 
703,  34  Sup.  Ct.  380,  8  N.  C.  C.  A. 
53. 

8.  Armour  Packing  Co.  v.  Unit- 
ed States,  209  U.  S.  56,  52  L.  Ed. 
681,  28  Sup.  Ct.  428;  New  York, 
N.  H.  &  H.  R.  Co.  v.  Interstate 
Commerce  Commission,  200  U.  S. 
361,  50  L.  Ed.  515,  26  Sup.  Ct.  272. 


§  25r)] 


Filing  and  Publication  of  Kates. 


437 


to  make  llicni  inflexible  while  in  force  and  to  eause  them 
to  be  unalterable  except  in  the  mode  prescribed,''  and 
to  secure  uniformity,  reasonableness  and  certainty  of 
all  charges  for  services/" 

§  250.  Publication  and  Filing  of  all  Rates,  Fares 
and  Charges  for  Interstate  Transportation  Mandatory. 
Under  the  provisions  of  Section  G  of  tlie  Act,"  every 
common  carrier  subject  to  the  provisions  of  the  Act,  is 
recpiired  to  print,  keep  open  to  public  inspection  and 
file  with  the  Commission  schedules  showing  all  rates, 
fares  and  charges  for  transportation  between  points  on 
its  own  route  and  between  points  on  its  own  route  and 
points  on  the  route  to  any  other  carrier  by  railroad, 
pipe  line  or  water,  when  a  through  route  and  joint  rate 
have  been  established.'^  If  no  joint  rate  is  established, 
then  the  several  carriers  are  recjuired  to  i)ub]ish  sepa- 
rately established  rates,  fares  and  charges  applying  to 
the  through  transportation.'-* 


9.  Kansas  City  Southern  R.  Co. 
V.  C.  H.  Albers  Commission  Co., 
223  U.  S.  573,  56  L.  Ed.  556,  32 
Sup.  Ct.  316. 

10.  Louisville  &  N.  R.  Co.  v. 
Dickerson,  112  C.  C.  A.  295,  191 
Fed.  705. 

11.  Appendix  A,  infra. 

12.  United  States  v.  Union  Stock 
Yard  &  Transit  Co.  of  Chicago,  226 
U.  S.  286,  57  L.  Ed.  226,  33  Sup.  Ct. 
83;  Interstate  Commerce  Commis- 
sion V.  United  States  ex  rel.  Hum- 
boldt S.  S.  Co.,  224  U.  S.  474,  56 
L.  Ed.  849,  32  Sup.  Ct.  556;  Unit- 
ed States  V.  Miller.  223  U.  S.  599. 
56  L.  Ed.  568,  32  Sup.  Ct.  323; 
Parsons  v.  Chicago  &  N.  W.  Ry. 
Co.,  167  U.  S.  447.  42  L.  Ed.  231,  17 
Sup.  Ct.  887;  United  States  v. 
Grand  Trunk  Ry.  Co.  of  Canada, 
225  Fed.  283;  Standard  Oil  Co.  of 
Indiana  v.  United  States,  90  C.  C. 
A.  364,  164  Fed.  376;  Chicago  &  A. 
Ry.  Co.  V.  United  States,  84  C.  C. 


A.  324,  156  Fed.  558,  26  L.  R.  A. 
(N.  S.)  551;  Aransas  Pass.  Chan- 
nel &  Dock  Co.  V.  Galveston,  H.  & 
S.  A.  Ry.  Co.,  27  I.  C.  C.  403;  Au- 
gusta &  S.  S.  S.  Co.  V.  Ocean  S.  S. 
Co.  V.  Savanah,  26  I.  C.  C.  380;  In 
re  Restricted  Rates,  20  I.  C.  C.  426; 
Milburn  Wagon  Co.  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  18  I.  C.  C.  144; 
Wabash  R.  Co.  v.  Priddy,  179  Ind. 
483,  101  N.  E.  724;  Hunter  v.  St. 
Louis  &  S.  F.  R.  Co.,  167  Mo.  App. 
624,  150  S.  W.  733. 

13.  Kansas  City  Southern  R.  Co. 
V  C.  H.  Albers  Commission  Co., 
223  U.  S.  573,  56  L.  Ed.  556,  32 
Sup.  Ct.  316;  Platten  Produce  Co. 
V.  Chicago  &  N.  W.  Ry.  Co.,  25  I. 
C.  C.  30;  Eagle  Pass  Lumber  Co. 
V.  National  Rys.  of  Mexico,  25  I. 
C.  C.  5;  St.  Louis  Blast  Furnace 
Co.  V.  Virginian  Ry..  24  I.  C.  C. 
360;  Cleveland,  C.  C.  &  St.  L.  R. 
Co.  V.  Hayes,  181  Ind.  87.  102  N. 
E.  34.   103  N.   E.   839;     Wabash   R. 


438 


Duties  to  Interstate  Shippers. 


[§  250 


No  carrier,  unless  otherwise  provided  by  statute, 
is  permitted  to  engage  or  participate  in  the  transporta- 
tion of  passengers  or  property  as  defined  in  the  Act,  un- 
less the  rates,  fares  and  charges  upon  which  the  same 
are  transported  have  been  filed  and  published  in  ac- 
cordance with  the  Act.^*  All  carriers  are  prohibited 
from  charging,  demanding,  collecting  or  receiving  a 
greater  or  less  or  different  compensation  for  such  trans- 
portation or  for  any  service  connected  therewith,  be- 
tween points  named  in  the  tariffs,  than  the  rates,  fares 
and  charges  which  are  specified  in  the  tariffs  filed  and 
in  effect.'^     The  statute  also  prohibits  carriers  from  re- 


Co.  V.  Priddy,  179  Ind.  483,  101  N. 
E.  724;  Robinson  v.  Louisville  & 
N.  R.  Co.,  160  Ky.  235,  169  S.  W. 
831;     Pecos    &   N.    T.   Ry.    Co.    v. 

Porter,  Tex.  Civ.   App.  , 

156  S.  W.  267. 

14.  Cincinnati,  N.  0.  &  T.  P.  Ry. 
Co.  V.  Rankin,  241  U.  S.  319,  60  L. 
Ed.  1022,  36  Sup.  Ct.  555,  L.  R.  A. 
1917A  265;  Texas  &  P.  R.  Co.  v. 
American  Tie  &  Timber  Co.,  234 
U.  S.  138,  58  L.  Ed.  1255,  34  Sup. 
Ct.  885;  Santa  Fe,  P.  &  P.  R.  Co. 
Co.  V.  Grant  Bros.  Const.  Co.,  228 
U.  S.  177,  57  L.  Ed.  787,  33  Sup. 
Ct.  474;  J.  H.  Hamlen  &  Sons  v. 
Illinois  Cent.  R.  Co.,  212  Fed.  324; 
United  States  v.  Illinois  Terminal 
R.  Co.,  168  Fed.  546;  Wisconsin 
Cent.  R.  Co.  v.  United  States,  94 
C.  C.  A.  444,  169  Fed.  76;  Hamp- 
ton Mfg.  Co.  V.  Old  Dominion  S. 
S.  Co.,  27  I.  C.  C.  666;  Maxwell 
V.  Wichita  Falls  &  N.  W.  Ry.  Co., 
20  I.  C.  C.  197;  Beekman  Lumber 
Co.  V.  Louisville  Ry.  &  Nav.  Co., 
19  I.  C.  C.  343;  Star  Grain  &  Lum- 
ber Co.  V.  Atchison,  T.  &  S.  F.  R. 
Co.,  17  I.  C.  C.  338. 

15.  United  States.  Pennsyl- 
vania R.  Co.  v.  International  Coal 
Min.  Co.,  230  U.  S.  184,  57  L.  Ed. 
1446,  33  Sup.  Ct.  893,  Ann.  Cas.  1915 
A  315;    Chicago,  I.  &  L.  R.  Co.  v. 


United  States,  219  U.  S.  486,  55  L. 
Ed.  305,  31  Sup.  Ct.  272;  Louisville 
&  N.  R.  Co.  V.  Mottley,  219  U.  S. 
467,  55  L.  Ed.  297,  31  Sup.  Ct.  265, 
34  L.  R.  A.  (N.  S.)  671;  Armour 
Packing  Co.  v.  United  States,  209 
U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct. 
428;  Cleveland,  C,  C.  &  St.  L.  R. 
Co.  V.  Hirsch,  123  C.  C.  A.  145,  204 
Fed.  849;  Louisville  &  N.  R.  Co. 
V.  Dickerson,  112  C.  C.  A.  295,  191 
Fed.  705;  Chicago,  B.  &  Q.  R.  Co. 
V  Feintuch,  112  C.  C.  A.  126,  191 
Fed.  482;  United  States  v.  Penn- 
sylvania R.  Co.,  153  Fed.  625; 
United  States  v.  Wood,  145  Fed. 
405;  In  re  Commutation,  Mileage 
&  Excursion  Tickets,  23  I.  C.  C.  95; 
Dietz  Lumber  Co.  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  22  L  C.  C.  75;  Ford 
Co.  v.  Michigan  Cent.  R.  Co.,  19 
I.  C.  C.  507;  Blinn  Lumber  Co. 
v.  Southern  P.  Co.,  18  I.  C.  C.  430; 
Old  Dominion  Copper  Mining  & 
Smelting  Co.  v.  Pennsylvania  R. 
Co.,  17  I.  C.  C.  309;  Brooks  Co.  v. 
Rutland  R.  Co.,  16  I.  C.  C.  479. 

Alabama.  Southern  Ry.  Co.  v. 
Harrison,  119  Ala.  539,  24,  43  L. 
R.  A.  385,  72  Am.  St.  Rep.  936,  z4 
So.   552. 

Georgia.  Central  of  Georgia  R. 
Co.  v.  O'Neill  Mfg.  Co.,  19  Ga. 
App.  490,  91  S.  B.  877. 


§  251] 


KiLixc;  AM)   Pri'.i.icATioN  OF  Rates. 


439 


fuiidin<^'  or  rcniittiiii;-  in  any  manner  oi-  liy  any  device 
any  portion  of  tlie  rates,  fares  and  cliar^cs  so  specified, 
or  extending  to  any  slii])per  or  facility  in  the  transj)orta- 
tion  of  passengers  or  property  except  such  as  are  speci- 
fied in  tlie  tariffs.'" 


§  251.  Necessary  Steps  to  Put  Rates  Legally  in 
Force — Posting  not  Essential.  Wliile  the  statute  re- 
quires tiie  carrier,  in  addition  to  printing  and  filing  with 
the  Commission  its  schedules  of  rates  and  charges,  to 
keep  copies  of  the  schedules  so  filed,  posted  in  two  pub- 
lic and  conspicious  places  in  every  station  where  freight 
and  passengers  are  received  for  interstate  trans])orta- 
tion  in  sucli  form  as  to  ))e  accessible  to  the  i)ublie,  the 
posting  of  the  scliedules  is  not  a  condition  i)recedent 
to  the  establishment  and  putting  in  force  the  tariffs  of 
rates;  for  the  duty  of  posting  two  copies  in  each  station 


Indiana.  Baltimore  &  O.  S.  W. 
R.  Co.  V.  New  Albany  Box  &  Bas- 
ket Co.,  48  Ind.  App.  647,  94  N. 
E.  906,  96  N.  E.  28. 

Louisiana.  Louisiana  Ry.  &  Nav. 
Co.  V.  Holly,  127  La.  615,  53  So. 
882. 

Massachusetts.  New  York,  N. 
H.  &  H.  R.  Co.  V.  York  &  Whitney 
Co.,  215  Mass.  36,  102  N.  E.  366. 

Missouri.  St.  Louis  Southern  R. 
Co.  V.  Texas  v.  Spring  River  Stone 
Co.,  169  Mo.  App.  109,  154  S.  W. 
465. 

New  Mexico.  Pecos  Valley  &  N. 
E.  R.  Co.  V.  Harris,  14  N.  M.  410, 
94  Pac.  951. 

Pennsylvania.  Crane  R.  Co.  v. 
Central  R.  of  New  Jersey,  248  Pa 
333,  93  Atl.  1076;  Central  R.  Co. 
of  New  Jersey  v.  Mauser,  241  Pa. 
603,  49  L.  R.  A.  (N.  S.)  92,  88  Atl. 
791. 

16.  United  States.  Lehigh  Val- 
ley R.  Co.  V.  United  States,  243  U. 
S.  444,  61  L.  Ed.  839,  37  Sup.  Ct. 
434;     Fourche   River   Lumber   Co. 


V.  Bryant  Lumber  Co.,  230  U.  S. 
316,  57  L.  Ed.  1498,  33  Sup.  Ct. 
887;  Kansas  City  Southern  R.  Co. 
V.  Carl,  227  U.  S.  639,  57  L.  Ed. 
683,  33  Sup.  Ct.  391;  Chicago,  I.  & 
L.  R.  Co.  V.  United  States,  219  U. 

5  486,  55  L.  Ed.  305,  31  Sup.  Ct. 
272;  New  York  Cent.  &  H.  River 
R.  Co.  V.  United  States,  212  U.  S 
500,  53  L.  Ed.  624,  29  Sup.  Ct.  309; 
Johnson-Brown  Co.  v.  Delaware,  L. 

6  W.  R.  Co.,  239  Fed.  590;  United 
Stftes  V.  Lehigh  Valley  R.  Co.,  222 
Fed.  685;  Illinois  Cent.  R.  Co.  v 
Segari  &  Co.,  205  Fed.  998;  Taen- 
zer  &  Co.  V.  Chicago,  R.  I.  &  P.  R. 
Co.,  112  C.  C.  A.  153,  191  Fed.  543; 
St.  Louis  Blast  Furnace  Co.  v.  Vir- 
ginian Ry.  Co.,  24  I.  C.  C.  360: 
Boise  Commercial  Club  v.  Adams 
E.\p.  Co.,  17  I.  C.  C.  115. 

Iowa.  McManus  v.  Chicago  Great 
Western  R.  Co.,  156  la.  359.  136  N. 
W.  769. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Allen.  152  Ky.  145,  153  S.  'V. 
198. 


•i4U  Duties  to  Interstate  Shippers,  [^  251 

is  only  required  as  a  method  of  affording  special  facili- 
ties to  the  public  for  ascertaining  the  rates  actually  in 
force/' 

Under  the  statute,  posting  and  publication  are  es- 
sentially distinct;  one  means  the  printing  of  the  schedul- 
es, filing  them  with  the  Commission  and  keeping  them 
open  to  public  inspection,  while  the  other  is  a  method 
of  permitting  the  public  to  ascertain  the  lawful  rates 
so  fixed.  A  shipper  was  indicted  for  violation  of  the 
Interstate  Commerce  Act,  the  indictment  alleging  that 
he  knowingly  accepted  a  rebate  whereby  property  was 
transported  in  interstate  commerce  "at  a  less  rate  than 
that  named  in  the  tariffs  published  -and  filed  by  such 
carrier  as  is  required  by  said  Act."  There  was  no  fur- 
ther allegation  in  the  indictment  that  the  schedules  and 
tariffs  alleged  to  have  been  violated  were  posted  in  the 
manner  required  by  law.  The  sufficiency  of  the  indict- 
ment being  raised  by  demurrer,  the  question  was  pre- 
sented for  decision  whether  the  compliance  with  the 
requirements  of  the  Act  as  to  posting  of  tariffs  in  sta- 
tions and  depots  was  a  condition  precedent  to  the  es- 
tablishment of  the  tariff.  The  trial  court  sustained 
the  demurrer  ;^^  but  on  appeal  to  the  Supreme  Court,  the 
decision  of  the  lower  court  was  reversed.  "It  is  the 
contention  of  the  defendants,"  said  Mr.  Justice  Van 
Devanter  for  the  Court, '^  "that  a  tariff  is  not  published 

Mississippi.     Illinois     Cent.     R.  33     Sup.    Ct.     391;      Kansas    City 

Co.  V.   Holman,   106   Miss.   449,   64  Southern   R.   Co.   v.   C.   H.   Albers 

So.  7.  Commission  Co.,  223  U.  S.  573,  56 

New  York.  Houseman  v.  Fargo,  L.  Ed.  556,  32  Sup.  Ct.  316;    Unit- 

124  N.  Y.  Supp.  1086.  ed  States  v.  Miller,  223  U.  S.  599, 

North  Dakota.     Smith   v.   Great  56    L.    Ed.    568,    32    Sup.    Ct.    323; 

Northern  R.  Co.,  15  N.  D.  195,  107  Texas  &  P.  R.  Co.  v.  Cisco  Oil  Mill, 

N.  W.  56.  204  U.  S.  449,  51  L.  Ed.  562,  27  Sup. 

Washington.  Cowley  v.  Northern  ct.  358;    United  States  v.  Standard 

Pac.   R.   Co.,   68   Wash.   558,   41  L.  Qil  Co.,  170  Fed.  988. 

R.  A.   (N.  S.)    559,  123  Pac.  998^  ,3      ^^.^^^  g^^^^^  ^                   ^^^ 

17.  Berwind-White  Coal  Min.  Co.  , 

V.  Chicago  &  E.  R.  Co.,  235  U.  S.  ^  ^    "     " 

371.  59  L.  Ed.  275,  35  Sup.  Ct.  131;  ^^-     United  States  v.  Miller,  223 

Kansas    City    Southern    R.    Co.    v.  U.   S.  599,  56  L.   Ed.  568,  32   Sup. 

Carl,  227  U.  S.  6.39,  57  L.  Ed.  683,  Ct.  323. 


§  252]  FiiJXG  AND   Publication  of  Kates.  441 

in  the  .sciiso  in  wliicli  tlic  act  nsos  tliat  torin  nnless  print- 
ed copies  are  'kept  posted  in  two  pnl)li('  and  eonspieuons 
places  in  every  depot,'  etc.,  and  it  was  this  contciilK.ii 
that  prevailed  in  the  Cirenit  Court.     Hut,  in  our  oi)in- 
ion,  it  is  not  sound.    Pul)li('ati<)n  and  ]H)stinu-  in  the  sense 
of  the  act  are  essentially  distinct.     'IMiis  is  the  import 
of  the  provision  that  the  iccpiirements  relatin.i;  to  'i)ul)- 
lisiung,  posting-  and  filing'  may  he  modilied  hy  the  com- 
mission in  special  circumstances,  for  if  i)ubiishing  in- 
cluded i)()sting,  mention  of  the  latter  was  unnecessary. 
And  from  all  the  i)i()visi()ns  on  the  subject  it  is  evident 
that  the  publication  intended  consists  in  promulgating 
and  distributing  the  tariff  in  ])rinted  form  preparatory 
to  putting  it  into  effect,  while  the  posting  is  a  continu- 
ing act  enjoined  upon  the  carrier,  while  the  tariff  re- 
rnains  operative,  as  a  means  of  affording  special  facili- 
ties to   the  public  for  ascertaining  the   rates   in  force 
thereunder.    In  other  words,  publication  is  a  step  in  es- 
tablishing rates,  while  posting  is  a  duty  arising  out  of 
the  fact  that  they  have  been  established.     Obviously, 
therefore,  posting  is  not  a  condition  to  making  a  tarift" 
legally  operative.    Neither  is  it  a  condition  to  the  con- 
tinued existence  of  a  tariff  once  legally  established.     If 
it  were,  the  inadvertent  or  mischievous  destruction  or 
removal  of  one  of  the  posted  copies  from  a  depot  would 
disestablish   or  suspend  the  rates,   a  result  which  evi- 
dently is  not  intended  by  the  act,  for  it  provides  that 
rates  once   lawfully   established    shall    not   be   changed 
otherwise  than  in  the  mode  prescribed.     Like  views  of 
the  posting  clause  were  expressed  in  Texas  and  Pecitic 
Railway  Co.  v.  Cisco  Oil  Mill,  204  U.  S.  449,  and  upon 
further  consideration  we  perceive  no  reason  for  depart- 
ing from  them.     See  also  Kansas  City  Southern  Rail- 
way Co.  V.  Albers  Commission  Co.,  ante,  p.  573." 

§  252.  What  the  Schedules  of  Rates,  Fares  and 
Charges  Filed  with  the  Commission  Must  Contain.  Sec- 
tion 6  further  provides  that  the  schedules  so  printed, 
filed  and  ])ublished  must  state  the  i)lace  between  which' 
property  and  passengers  will  be  carried,  shall  contain 
the  classification  of  freight  in  force,  shall  contain  sepa- 


442 


Duties  to  Interstate  Shippers, 


[§  252 


rately  all  terminal  charges,  storage  charges,  icing  charg- 
es and  all  other  charges  which  the  Commission  may  re- 
quire,-" shall  include  all  privileges  or  facilities  granted 
or  allowed,-^  and  any  rules  or  regulations  which  in  any 
wise  affect,  change  or  determine  any  part  of  or  the  ag- 
gregate of  such  rates,  fares  and  charges,  or  the  value 


20.  Swift  &  Co.  V.  Hocking  Val- 
ley R.  Co.,  243  U.  S.  281,  61  L.  Ed. 
722,  37  Sup.  Ct.  287:  Berwind- 
White  Coal  Min.  Co.  v.  Chicago  & 
E.  R.  Co.,  235  U.  S.  371,  59  L.  Ed. 
275,  35  Sup.  Ct.  131;  Interstate 
Commerce  Commission  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  234  U.  S. 
294  U.  S.  294,  58  L.  Ed.  1319,  34 
Sup.  Ct.  814;  Proctor  &  Gamble 
Co.  V.  United  States,  225  U.  S.  282, 
56  L.  Ed.  1091,  32  Sup.  Ct.  761; 
Interstate   Commerce   Commission 

V  Stickney,  215  U.  S.  98,  54  L.  Ed. 
112,  30  Sup.  Ct.  66;  Interstate 
Commerce  Commission  v.  Chicago, 

B.  &  Q.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  22  Sup.  Ct.  824;  Inter- 
state Commerce  Commission  v.  De- 
troit. G.  H.  &  M.  Ry.  Co.,  167  U. 
S.  633,  42  L.  Ed.  306,  17  Sup.  Ct. 
986;  Cudahy  Packing  Co.  V.  Grand 
Trunk  Western  R.  Co.,  131  C.  C. 
A.  401,  215  Fed.  93;  Knudsen-Fer- 
guson  Fruit  Co.  v.  Chicago,  St.  P. 
M.  &  d.  R.  Co.,  79  C.  C.  A.  483,  149 
Fed.   973;     Walker  v.   Keenan,   19 

C.  C.  A.  668,  73  Fed.  755;  Mixed 
Car  Dealers  Ass'n  v.  Delaware,  L. 
&  W.  R.  Co.,  33  I.  C.  C.  133;  Wil- 
son Bros.  V.  Delaware,  L.  &  W.  R. 
Co.,  25  I.  C.  C.  11;  Proctor  &  Gam- 
ble Co.  V.  Cincinnati,  H.  &  D.  Ry. 
Co.,  19  I.  C.  C.  556;  Leonard  v. 
Chicago.  M.  &  St.  P.  Ry.  Co.,  12 
I    C.  C.  492:    Cudahy  Packing  Co. 

V  Chicago  &  N.  W.  Ry.  Co.,  12  I. 
C.  C.  446;  Shiel  &  Co.  v.  Illinois 
Cent.  R.  Co.,  12  I.  C.  C.  210;  Black- 
man  V.  Southern  Ry.  Co..  10  I.  C. 
C   352;    Central  Yellow  Pine  Ass'n 


V.  Vicksburgh,  S.  &  P.  R.  Co.,  10 
I.  C.  C.  193;  Pennsylvania  Millers' 
State  Ass'n  v.  Philadelphia  &  R. 
Ry.  Co.,  8  I.  C.  C.  531;  Erie  R. 
Co.  V.  Wanaque  Lumber  Co.,  75  N 
J  L.  878,  69  Atl.  168;  New  York 
Cent.  &  H.  River  R.  Co.  v.  Gen- 
eral Elec.  Co.,  83  N.  Y.  Misc.  529, 
146  N.  Y.  Supp.  322. 

21.  Mitchell  Coal  &  Coke  Co.  v. 
Pennsylvania  R.  Co.,  230  U.  S.  247, 
57  L.  Ed.  1472,  33  Sup.  Ct.  916; 
Chicago  &  A.  R.  Co.  v.  Kirby,  225 
U.  S.  155,  56  L.  Ed.  1033,  32  Sup. 
Ct.  648,  Ann.  Cas.  1914A  501; 
United  States  v.  Erie  R.  Co.,  209 
Fed.  283;  Elwood  Grain  Co.  v.  St. 
Joseph  &  G.  I.  R.  Co.,  121  C.  C.  A. 
153,  202  Fed.  845;  Langdon  v. 
Pennsylvania  R.  Co.,  194  Fed.  486; 
Kern  &  Sons  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  40  I.  C.  C.  552;  Sulz- 
berger &  Sons  v.  Minneapolis,  St 
P.  &  S.  S.  M.  R.  Co.,  40  I.  C.  C. 
173;  Industrial  Railways  Case,  29 
I.  C.  C.  212;  Beaumont  &  G.  N. 
R.  Co.  V.  Atchison,  T.  &  S.  F.  R. 
Co.,  24  I.  C.  C.  161;  Liberty  Mills 
V.  Louisville  &  N.  R.  Co.,  23  I.  C. 
C.  182;  Associated  Jobbers  of  Los 
Angeles  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  18  I.  C.  C.  310;  Schultz-Han- 
sen  Co.  V.  Southern  P.  Co.,  18  I. 
C.  C.  234;  Kile  &  Morgan  Co.  v. 
Deepwater  Ry.,  15  I.  C.  C.  235; 
Folmer  &  Co.  v.  Great  N.  R.  Co, 
15  I.  C.  C.  33;  Gulf  &  S.  I.  R.  Co. 
v.  Laurel  Cotton  Mills,  91  Miss. 
166,  45  So.  982;  Bergin  v.  Mis- 
souri, K.  &  T.  Ry.  Co.. Tex. 

Civ.  App. ,  150  S.  W.  1184. 


§  252J 


FiLiN(j  AMj  Publication  of  Kates. 


443 


of   the   service   rendered    lo    the   passenger,    shippf-r   or 
consif^nee.^^ 

The  schedules  are  r(M|uiied  to  be  ])laiiily  printed  in 
large  type  and  copies  for  the  use  of  the  piil)li('  are  re- 
quired to  be  kept  ])osted  in  two  public  and  conspicuous 
l)]aces  in  every  station  or  office  of  each  carrier  where 
either  passengers  or  freight  are  received  for  transporta- 
tion, and  in  such  foi'm  that  they  shall  be  accessible  to 
the  public  and  be  conveniently  insi)ected.  These  ])rovi- 
sions  apply  to  all  traffic,  transportation  and  facilities 
defined  by  the  Act.  Common  carriers  receiving  freight 
in  the  United  States  to  be  carried  through  a  foreign 
country  to  any  other  place  in  the  United  States  are  re- 
quired also  in  like  manner  to  comply  with  the  foregoing 
provisions.  Carriers  who  are  parties  to  any  joint  tariff 
other  than  the  one  filing  the  same,  are  required  to  file 
with  the  Commission  such  evidence  of  concurrence  there- 


22.  Loomis  v.  Lehigh  Valley  R. 
Co.,  240  U.  S.  43,  60  L.  Ed.  517,  C6 
Sup.  Ct.  228;  Boston  &  M.  R.  Co. 
V.  Hooker,  233  U.  S.  97,  58  L.  El. 
868,  34  Sup.  Ct.  526,  L.  R.  A.  1915B 
450,  Ann.  Cas.  1915D  593;  United 
States  V.  Baltimore  &  O.  R.  Co.,  231 
U.  S.  274,  58  L.  Ed.  34  Sup.  Ct.  75; 
Mitchell  Coal  &  Coke  Co.  v.  Penn- 
sylvania R.  Co..  230  U.  S.  247,  57 
L.  Ed.  1472,  33  Sup.  Ct.  916;  Adams 
Exp.  Co.  V.  Croninger,  226  U.  S. 
491,  57  L.  Ed.  314,  33  Sup.  Ct.  148, 
44  L.  R.  A.  (N.  S.)  257;  Union 
Pac.  R.  Co.  V.  Updike  Grain  Co., 
222  U.  S.  215,  56  L.  Ed.  171,  32 
Sup.  Ct.  39;  Interstate  Commerce 
Commission  v.  Diffenbaugh,  222  U. 
S.  42,  56  L.  Ed.  83,  32  Sup.  Ct.  22; 
Southern  Cotton  Oil  Co.  v.  Central 
of  Georgia  R.  Co.,  142  C.  C.  A.  627, 
228  Fed.  335;  Louisville  &  N.  R. 
Co.  V.  Dickerson,  112  C.  C.  A.  295, 
191  Fed.  705;  Farmers'  Coopera- 
tive Ass'n  V.  Chicago,  B.  &  Q.  R. 


Co.,  34  I.  C.  C.  60;  Red  River  Oil 
Co.  V.  Texas  &  P.  Ry.  Co.,  23  I. 
C.  C.  438;  California  Pole  &  Pil- 
ing Co.  V.  Southern  P.  Co.,  22  I. 
C.  C.  507;  Crescent  Coal  &  Mining 
Co.  V.  Baltimore  &  0.  R.  Co.,  20 
I.  C.  C.  559;  Riter  v.  Oregon  Short 
Lino  R.  Co.,  19  I.  C.  C.  443;  An- 
derson Clayton  &  Co.  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.,  18  I.  C.  C.  340; 
Duluth  Log  Co.  V.  Chicago,  St.  P. 
M.  &  O.  Ry.  Co.,  16  I.  C.  C.  38;  Gen- 
eral Elec.  Co.  V.  New  York  Cent. 
&  H.  River  R.  Co.,  14  I.  C.  C.  237; 
National  Wholesale  Lumber  L^eal- 
ers'  Ass'n  v.  Atlantic  Coa.st  Line  R. 
Co.,  14  I.  C.  C.  154;  Victor  Fuel 
Co.  v.  Atchison,  T.  &  S.  F.  Ry.  Co.. 
14  L  C.  C.  119;  Spillers  &  Co.  v. 
Louisville  &  N.  R.  Co.,  8  I.  C.  C. 
364;  Suffern  Hunt  &  Co.  v.  Indi- 
ana, D.  &  W.  R.  Co.,  7  I.  C.  C.  255; 
Nebraska  Transfer  Co.  v.  Chicago, 
B.  &  Q.  R.  Co.,  90  Neb.  488,  134  N. 
W.   163. 


444  Duties  to  Interstate  Shippees.  [§  252 

in  or  aceoptanee  thereof  as  may  be  required  or  approved 
by  the  Commission.-^ 

§  253.  Privileges  or  Facilities  Furnished  Shippers 
and  Not  Specified  in  Tariffs  Unlawful.  All  carriers  snl)- 
ject  to  the  statute  who  extend  to  any  shipper  or  person 
any  privile.ii'e  or  facility  in  the  transportation  of  property 
under  federal  control,  except  such  as  are  specified  in 
the  tariffs  on  tile  with  the  Interstate  Commerce  Com- 
mission, violate  the  provisions  of  Section  6.^*  When, 
therefore,  the  conditions  of  liability  while  the  goods 
are  retained  after  notice  of  arrival  at  a  terminal  point 
are  stipulated  in  the  bill  of  lading  under  the  regulations 
filed  with  the  Interstate  Commerce  Commission,  those 
conditions  are  controlling  as  to  the  liability  of  the  car- 
rier and  the  parties  cannot  substitute  therefor  a  special 
agreement  not  specified  in  the  tariffs.-^  An  allowance 
by  a  common  carrier  to  the  owners  of  an  elevator  on  its 
line  of  $1.75  per  car  on  all  grain  received  at  the  elevator 
from  stations  on  the  line  of  the  carrier  and  unloaded 
into  the  elevator,  was  held  to  be  unlawful,  as  it  was  not 
published  in  the  tariffs  of  the  carrier  and  a  similar  al- 
lowance was  not  made  to  other  owners  of  elevators  sim- 
ilarly situated.-*'  All  allowances  made  to  shippers,  even 
though  reasonable  in  amount,  are  unlawful  rebates  un- 
less published  in  the  tariffs." 

§  254.  Regulations  Concerning  Baggage  of  Inter- 
state Passengers  Must  be  Published.  As  the  act  re- 
quires all  common  carriers  subject  thereto  to  file  with 
the  Commission  all  rules  and  regulations  which  in  any 

23.  In  re  Coal  Rates  on  Stony  25.  Southern  Ry.  Co.  v.  Pres- 
Fork  Branch,  26  I.  C.  C.  168;  Edi-  cott,  240  U.  S.  632,  60  L.  Ed.  836, 
son  Portland  Cement  Co.  v.  Dela-      36  Sup.  Ct.  469. 

ware,  L.  &  W.  R.  Co.,  22  I.  C.  C.  26.      Elwood    Grain    Co.    v.    St. 

382. 

24.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Robinson,  233  U.  S.  173,  58  L. 
Ed.  901,  34  Sup.  Ct.  556;  Chicago 
&  A.  Ry.  Co.  V.  Kirby.  225  U.  S.  Co.,  194  Fed.  486;  United  States 
155,  56  L.  Ed.  1033,  32  Sup.  Ct.  648,  v.  Chicago  &  A.  Ry.  Co.,  148  Fed. 
Ann.  Cas.  1914A   501.  646. 


Joseph  &  G.  I.  R.  Co.,  121  C.  C.  A. 
153,  202  Fed.  845. 

27.    Langdon  v.  Pennsylvania  R. 


§  254]  Filing  and  I*ublication  of  Rates.  445 

wise  chan^o,  affect  or  dotcnniiie  any  ]»art  or  tlie  a^^re- 
gate  of  the  rates,  fares  or  eliarges,  or  llic  value  of  any 
service  rendered  to  any  passenger,  rules  and  regulations 
concerning  the  baggage  of  interstate  j)ass('ngers  are  with- 
in the  terms  of  tiie  statute.-'  In  the  Hooker  case,  cited, 
it  appeared  that  the  schedules  of  the  carriers  filed  with 
the  Interstate  Conmicrce  Commission  contained  a  provi- 
sion that  the  liability  for  personal  baggage  should  not 
exceed  $100  in  value  for  a  passenger  presenting  a  full 
ticket  unless  a  greater  value  was  declared  and  stii)u- 
lated  by  the  owner  and  excess  charges  thereon  paid 
at  the  time  of  checking  the  baggage.  The  Supreme 
Judicial  Court  of  Massachussetts  permitted  a  recovery 
for  the  actual  value  of  the  baggage,  a  sum  greatly  in 
excess  of  the  limitation  fixed  in  the  schedule.  That  court 
held  that  the  limitation  in  the  schedule  was  no  part  of 
the  passenger  rate  or  tariff,  and  that  knowledge  of  the 
limitation  in  such  regulations  must  be  brought  home 
to  the  shipper  and  assented  to  by  him;'^  but  this  de- 
cision, on  writ  of  error,  was  reversed  by  the  United 
States  Supreme  Court  which  held  that  the  baggage  limi- 
tation on  file  with  the  Interstate  Commerce  Commis- 
sion was  binding  upon  a  passenger  without  regard  to 
his  knowledge.  Said  the  Court:  ''It  is  to  be  observed 
that  the  schedules  are  required  to  state,  among  other 
things,  in  naming  certain  charges,  'all  other  charges 
which  the  Commission  may  require,  all  privileges  or 
facilities  granted  or  allowed  and  any  rules  or  regulations 
which  in  any  wise  change,  affect,  or  determine  any 
part  or  the  aggregate  of  such  aforesaid  rates,  fares, 
and  charges,  or  the  value  of  the  service  rendered  to  the 
passenger,  shipper,  or  consignee.'  The  question  then 
is  did  the  limitation  as  to  liability  for  baggage  based 
upon  the  requirement  to  declare  its  value  when  more 
than  $100  was  to  be  recovered  come  within  that  provi- 
sion.    It  seems  to  us  that  the  ordinary  signification  of 

28.    Boston  &  M.  R.  Co.  v.  Hook-  29.     Hooker  v.   Boston  &   M.   R. 

er,  233  U.  S.  97,  58  L.  Ed.  868.  34  R.,  209  Mass.  598,  Ann.  Cas.  1912B 

Sup.  Ct.   526,  L.  R.  A.   l9l5B  450,  669,  95  N.  E.  945. 
Ann.  Cas.  1915D.    593. 


44G  Duties  to  Interstate  Shippers.  [§  254 

tho  terms  used  in  the  act  would  cover  sucli  require- 
ments as  are  here  made  for  tlie  amount  of  recovery  for 
baggage  lost  by  tlio  carrier.  It  is  a  regulation  which 
fixes  and  determines  the  amount  to  be  charged  for  the 
carriage  in  view  of  the  resi)onsibility  assumed,  and  it 
also  affects  the  value  of  the  service  rendered  to  the 
passenger.  Such  requirements  are  spoken  of,  in  deci- 
sions dealing  with  them,  as  regulations;  as,  a  common 
carrier  'may  prescribe  regulations  to  protect  himself 
against  imposition  and  fraud,  and  fix  a  rate  of  charges 
proportionate  to  the  magnitude  of  the  risks  he  may 
liave  to  encounter.'  York  Co.  v.  Central  E.  R.,  3  Wall. 
107,  112.  'It  is  undoubtedly  competent  for  carriers 
of  passengers,  by  specific  regulations,  distinctly  brought 
to  the  knowledge  of  the  passenger,  which  are  reasonable 
in  their  character  and  not  inconsistent  with  any  statute 
or  their  duties  to  the  public,  to  protect  themselves 
against  liability,  as  insurers,  for  baggage  exceeding  a 
fixed  amount  in  value,  except  upon  additional  com- 
pensation, proportioned  to  the  risk.  And  in  order  that 
such  regulations  may  be  practically  effective  and  the 
carrier  advised  of  the  full  extent  of  its  responsibility, 
and,  consequently,  of  the  degree  of  precaution  neces- 
sary upon  its  part,  it  may  rightfully  require,  as  a  condi- 
tion precedent  to  any  contract  for  the  transportation  of 
baggage,  information  from  the  passenger  as  to  its  value; 
and  if  the  value  thus  disclosed  exceeds  that  which  the 
passenger  may  reasonably  demand  to  be  transported 
as  baggage  without  extra  compensation,  the  carrier,  at 
its  option,  can  make  such  additional  charge  as  the  risk 
fairly  justifies.'  Railroad  Co.  v.  Fraloff,  100  U.  S.  24, 
27."  *  *  *  This  conclusion  is  further  strengthened 
by  the  action  of  the  Interstate  Commerce  Commission, 
in  requiring  by  its  Tariff  Circular  No.  15-A,  entitled 
'Regulations  Governing  the  Construction  and  Filing  of 
Freight  Tariffs  and  Classification  and  Passenger  Fare 
Schedules,'  effective  April  15,  1908,  and  in  force  at  the 
time  of  the  loss  here  in  question,  that:  '34.  Tariffs 
shall  contain,  in  the  order  named  (g)  Rules  and  regula- 
tions which  govern  the  tariff,  the  title  of  each  rule  or 
regulation  to  be  shown  in  bold  type.     Under  this  head 


§    254]  P'lLINd    AND     I^UBLICATION    OF    RaTES.  447 

all  of  the  rules,  regulations,  or  conditions  which  in  any 
way  affect  th(^  fares  named  in  the  tariff  shall  l)e  entered. 

*  *  *  These  rules  shall  include  *  *  *  the  gener- 
al baggage  regulations,  and  also  schedule  of  excess-hag- 
gage  rates,  unless  such  excess-baggage  rates  are  shown  in 
tariff'  in  connection  with  the  fares.'  This  reciuirenicnt  is  a 
practical  interijrctation  of  the  law  by  the  administrative 
body  having  its  enforcement  in  charge,  and  is  entitled 
to  weight  in  construing  tlui  act.  The  act  of  June  18, 
1910  (c.  309,  3fi  Stat.  5:39,  54f)),  defining,  in  Sec.  ],  the 
duties  of  carriers  to  make  just  and  reasonable  regula- 
tions affecting,  among  other  things,  the  carrying  of 
personal,  sami)le  and  excess  baggage,  may  be  noted  in 
passing.  This  statute  was  before  the  Commission  in  a 
case  involving  such  regulations.  Regulations  Restrict- 
ing the  Dimensions  of  Baggage,  26  I.  C.  C.  292.  Con- 
cerning it  the  Commission,  by  Clark,  Chairman,  said 
(p.  293):  'Prior  to  June  18,  1910,  the  act  to  regulate 
Commerce  contained  no  specific  provision  relating  to  the 
interstate  transi)ortation  of  baggage,  except  in  connec- 
tion with  the  issuance  of  joint  interchangeable  mileage 
tickets.  The  Commission  had,  however,  under  authority 
of  section  6,  required  carriers  to  publish  and  file  their 
general  baggage  regulations  and  their  schedules  of  ex- 
cess-baggage rates.  Section  1  was  amended  on  the  date 
named,  the  amendment,  in  so  far  as  it  is  material,  read- 
ing as  follows:  'It  is  hereby  made  the  duty  of  all  com- 
mon carriers  subject  to  the  provisions  of  this  act  to  es- 
tablish, observe,  and  enforce  *  *  *  j^gt  r^^^i  reason- 
able regulations  and  practices  affecting  classifications, 

*  *  *  the  manner  and  method  of  presenting,  mark- 
ing, packing,  and  delivering  property  for  transportation, 
the  facilities  for  transportation,  *  *  *  the  carrying 
of  personal,  sample  and  excess  baggage.'  And  it  is 
to  be  observed  that  the  Commission  considers  its  re- 
quirement with  reference  to  including  baggage  regula- 
tions in  the  tariff  schedules,  (juoted  above,  as  adequate, 
for  the  same  provisions  appear  in  its  current  circular. 
We  are  therefore  of  the  opinion  that  the  re(iuirement 
published  concerning  the  amount  of  the  liability  of  the 
defendant  based  upon  additional  payment  where  bag- 


448  Duties  to  Intebstate  Shippers.  [§  254 

gage  was  declared  to  exceed  $100  in  value  was  determi- 
native of  the  rate  to  be  charged  and  did  affect  the  ser- 
vice to  be  rendered  to  the  passenger,  as  it  fixed  the  price 
to  be  paid  for  the  service  rendered  in  the  particular 
case,  and  was,  therefore,  a  regulation  within  the  mean- 
ing of  the  statute." 

§  255.  Demurrage  Charges  on  Interstate  Ship- 
ments Must  be  Filed  with  Commission.  The  statute 
requires  the  published  tariff  to  show  everything  in  the 
way  of  terminal  regulations  which  in  any  way  affects 
the  cost  of  the  service  rendered  by  the  carrier.^"  All 
terminal  and  storage  charges  are  specifically  required 
to  be  separately  stated  in  the  tariffs.  The  term  "trans- 
portation" in  Section  1  of  the  Act  includes  all  services 
in  connection  with  the  receipt  and  delivery  of  property 
transported.  Demurrage,  being  a  charge  for  the  deten- 
tion of  a  car  because  of  the  use  of  the  car  and  track 
until  unloaded,  is  a  terminal  charge  and  is  required 
to  be  filed  with  the  Commission. ^^ 

§  256.  No  Changes  in  Rates,  Fares  and  Charges 
Permitted  Without  Thirty  Days  Notice  to  the  Com- 
mission. It  is  further  provided  in  Section  6  that  no 
change  shall  be  made  in  the  rates,  fares  and  charges  or 
joint  rates,  fares  and  charges  which  have  been  filed  and 
published  by  any  common  carrier  in  compliance  with 
the  Act,  except  after  thirty  days  notice  to  the  Com- 
mission and  to  the  public,  which  shall  plainly  state  the 
changes  proposed  to  be  made  in  the  schedule  then  in 
force  and  the  time  when  the  changed  rates,  fares  or 
charges  will  go  into  effect,  and  the  proposed  changes 
must  be  done  by  printing  new  schedules  or  be  plainly 
indicated  upon  the  schedules  in  force  at  the  time  and 
kept  open  for  public  inspection.  The  Commission  may, 
however,  in  its  discretion,  for  good  cause  shown,  allow 

30.  United  States  v.  Standard  H.  &  H.  R.  Co.,  151  Fed.  694;  Peale, 
Oil  Co.,  148  Fed.  719.  Peacock  &  Kerr  v.  Central  -R.  of 

31.  Lehigh  Valley  R.  Co.  v.  New  Jersey,  18  I.  C.  C.  25;  Wilson 
United  States,  110  C.  C.  A.  513.  188  Produce  Co.  v.  Pennsylvania  R.  Co., 
Fed.  879;  Mitchie  v.  New  York,  N.      14  I.  C.  C.  170. 


§  257]  P'lLiNG  AND  Publication  of  Rates.  449 

changes  upon  loss  than  the  thirty  days  notice  required 
and  may  modify  the  requirements  of  the  law  in  respect 
to  publisliing,  posting  and  filing  of  tariffs  either  in 
particular  instances  or  by  general  order  aijplicable  to 
special  or  peculiar  circumstances  and  conditions. '^^  The 
Commission  is  also  authorized  to  prescribe  the  form  in 
which  the  schedules  required  shall  be  kept  open  to  pub- 
lic inspection.  Any  schedule  that  does  not  provide  a 
given  lawful  notice  of  its  effective  date  may  be  rejected 
by  the  Commission.  A  refusal  or  failure  to  comply 
with  any  regulation  adopted  or  any  order  made  by  the 
Commission  under  the  provisions  of  Section  6  subjects  all 
carriers  to  a  penalty  of  $500  for  each  offense  and  $25  for 
each  days  continuance  of  the  offense. 

§  257.  Carriers  Prohibited  from  Departing  to  any 
Extent  from  Published  Schedules  of  Rates  and  Charges 
Filed  with  Commission.  The  rates  and  fares,  both  joint 
and  separate,  for  interstate  transportation,  the  terminal, 
storage,  transit,  demurrage,  icing,  and  other  charges  re- 
quired to  be  published  by  the  Commission,  all  the  privi- 
leges and  facilities  granted  and  allowed  by  carriers, 
and  the  rules  and  regulations  which  affect,  change  or 
determine  any  part  of  the  rates  or  fares,  or  the  value 
of  any  service  rendered  to  any  shipper,  passenger  or 
consignee,  published  and  filed  with  the  Commission  as 
required  by  the  provisions  of  Section  6,  are  binding  upon 
all  and  are  conclusive  as  to  the  rights  of  all  interested 
parties  unless  attacked  in  a  direct  proceeding  for  that 
purpose  before  the  Interstate  Commerce  Commission. ^^ 

32.  Acme  Cement  Plaster  Co.  v.  Coal  Min.  Co.,  238  U.  S.  456,  59  L. 
St.  Louis  &  S.  F.  R.  Co.,  22  I.  C.  Ed.  1406,  35  Sup.  Ct.  896;  Louis- 
C.  283.  ville  &  N.  R.  Co.  v.  United  States, 

33.  O'Keefe  v.  United  States,  238  U.  S.  1,  59  L.  Ed.  1177,  35  Sup. 
240  U.  S.  294,  60  L.  Ed.  651,  36  Ct.  696;  Pennsylvania  R.  Co.  v. 
Sup.  Ct.  313;  Loomis  v.  Lehigh  Puritan  Coal  Min.  Co.,  237  U.  3. 
Valley  R.  Co.,  240  U.  S.  43,  60  L.  121,  59  L.  Ed.  867,  35  Sup.  Ct.  484; 
Ed.  517,  36  Sup.  Ct.  228;  Dayton  Louisville  &  N.  R.  Co.  v.  Maxwell, 
Coal  &  Iron  Co.  v.  Cincinnati,  N.  2:^7  U.  S.  94,  59  L.  Ed.  853,  35  Sup. 
O.  &  T.  P.  R.  Co.,  239  U.  S.  446,  Ct.  494,  L.  R.  A.  1915E  665;  Texas 
60  L.  Ed.  375,  36  Sup.  Ct.  137:  &  P.  R.  Co.  v.  American  Tie  & 
Pennsylvania  R.  Co.  v.  Clark  Bros.  Timber  Co.,  234  U.   S.  138,   58  L. 

1    L'tiiitiDl    t'nnii-1-s    29 


450 


DrTiEs  TO  Interstate  Shippers. 


[§  257 


A  carrier  cannot  depart  to  any  extent  from  the  pub- 
lished schedules  on  file  without  incurring  the  drastic 
penalties  prescribed  by  the  statute;^*  for,  under  the 
Interstate  Commerce  Act,  the  rate  of  the  carrier  duly 
filed  is  the  only  lawful  charge,  and  deviation  from  it  is. 
not  permitted  upon  any  pretext.  This  rule  is  undeniably 
strict  and  it  obviously  works  hardship  in  many  case's 
but  it  embodies  the  policy  which  has  been  adopted  by 
Congress  in  the  regulation  of  interstate  transportation 
of  freight  and  passengers  in  order  to  prevent  unjust 
discriminations.-'^     Whenever  a  schedule  rate  for  trans- 


Ed.  1255,  34  Sup.  Ct.  885; 
Atchison,  T.  &  S.  F.  R.  Co.  v. 
United  States,  232  U.  S.  199,,  58 
L.  Ed.  568,  34  Sup.  Ct.  291;  Simp- 
son V.  Shepard,  230  U.  S.  352,  57 
L.  Ed.  1511,  33  Sup.  Ct.  729,  48  L. 
R.  A.  (N.  S.)  1151,  Ann.  Cas.  1916A 
18;  Interstate  Commerce  Commis- 
sion V.  Louisville  &  N.  R.  Co.,  227 
U.  S.  88,  57  L.  Ed.  431,  33  Sup. 
Ct.  185;  Illinois  Cent.  R.  Co.  v. 
Henderson  Elevator  Co.,  226  U. 
S.  441,  57  L.  Ed.  290,  33  Sup.  Ct. 
176;  Proctor  &  Gamble  v.  United 
States,  225  U.  S.  282,  56  L.  Ed. 
1091,  32  Sup.  Ct.  761;  Interstate 
Commerce  Commission  v.  Union 
Pac.  Co.,  222  U.  S.  541,  56  L.  Ed. 
308,  32  Sup.  Ct.  108;  Interstate 
Commerce  Commission  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  218  U.  S.  88,  54 
L.  Ed.  946,  30  Sup.  Ct.  651;  M.  C. 
Kiser  Co.  v.  Central  of  Georgia  Ry. 
Co.,  236  Fed.  573;  St.  Louis  South- 
western Ry.  Co.  V.  United  States, 
234  Fed.  668;  Northern  Pac.  R. 
Co.  V.  Pacific  Coast  Lumber  Man- 
ufacturers' Ass'n,  91  C.  C.  A.  39, 
165  Fed.  1. 

34.  Phillips  V.  Grand  Trunk  W. 
R.  Co.,  236  U.  S.  662,  59  L.  Ed.  771, 
35  Sup.  Ct.  444;  United  States  v. 
Union  Stock  Yard  &  Transit  Co., 
226  U.  S.  286,  57  L.  Ed.  226,  33 
Sup.  Ct.  83;    Chicago  &  A.  R.  Co. 


V  Kirby,  225  U.  S.  155,  56  L.  Ed. 
1033,  32  Sup..  Ct.  648,  Ann.  Cas. 
1914A  501;  Chicago,  I.  &  L.  R.  Co. 
V.  United  States,  219  U.  S.  486,  55 
L.  Ed.  305,  31  Sup.  Ct.  272;  Louis- 
ville &  N.  R.  Co.  V.  Mottley,  219 
U.  S.  467,  55  L.  Ed.  297,  31  Sup.  Ct. 
265,  34  L.  R.  A.  (N.  S.)  671; 
Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  52  L.  Ed.  681, 
28  Sup.  Ct.  428;  New  York,  N.  H. 
&  H.  R.  Co.  V.  Interstate  Commerce 
Commission,  200  U.  S.  361,  50  L. 
Ed.  515,  26  Sup.  Ct.  272;  Chicago 
&  N.  W.  Ry.  Co.  V.  William  S.  Stein 
Co.,  233  Fed.  716;  Cleveland,  C, 
C.  &  St.  L.  R.  Co.  v.  Hirsch,  123 
C.  C.  A.  145,  204  Fed.  849;  Taenzer 
&  Co.  v.  Chicago,  R.  I.  &  P.  R.  Co., 
112  C.  C.  A.  153,  191  Fed.  543. 

35.  United  States.  Cincinnati, 
N.  O.  &  T.  P.  R.  Co.  v.  Rankin, 
241  U.  S.  219,  60  L.  Ed.  1022,  36 
Sup.  Ct.  555,  L.  R.  A.  1917A  265; 
United  States  v.  Union  Mfg.  Co., 
240  U.  S.  605,  60  L.  Ed.  822,  36 
Sup.  Ct.  420;  New  York,  P.  &  N. 
R.  Co.  V.  Peninsula  Produce  Exch. 
of  Maryland,  240  U.  S.  34,  60  L. 
Ed.  511,  36  Sup.  Ct.  230,  L.  R.  A. 
191 7A  193;  Louisville  &  N.  R.  Co. 
V.  Maxwell,  237  U.  S.  94,  59  L.  Ed. 
853,  35  Sup.  Ct.  494,  L.  R.  A.  1915E 
665;  Boston  &  M.  R.  Co.  v.  Hooker, 
233  U.  S.  97,  58  L.  Ed.  868,  34  Sup. 


§  257] 


Filing  and  Publication  of  Kates. 


451 


portation  or  a  cliar^o  for  any  spi-vicc  loiulcivd  slii]»pprs 
in  connection  with  intcrslatc  tratlic  is  i)iit  into  ctTcct  hv 


Ct.  r)26,  L.  R.  A.  1915R  4r)0.  Ann. 
Cas.  IdUiD  593;  Chicago,  R.  I.  & 
P.  R.  Co.  V.  Cramer,  232  U.  S.  490, 
58  L.  Ed.  G97,  34  Sup.  Ct.  383; 
Mitchell  Coal  &  Coke  Co.  v.  Penn- 
sylvania R.  Co..  230  U.  S.  247,  57 
L.  Ed.  1472,  33  Sup.  Ct.  916;  St. 
Louis  Southwestern  R.  Co.  v. 
Burckett,  229  U.  S.  603,  57  L.  Ed. 
1347,  33  Sup.  Ct.  773;  Missouri, 
K.  &  T.  R.  Co.  V.  Harriman,  227 
U.  S.  657,  57  L.  Ed.  690,  33  Sup. 
Ct.  397;  Kansas  City  Southern  R. 
Co.  V.  Carl,  227  U.  S.  639,  57  L.  Ed. 
683,  33  Sup.  Ct.  391;  Kansas  City 
Southern  R.  Co.  v.  C.  H.  Albers 
Commission  Co.,  223  U.  S.  573,  50 
L.  Ed.  556,  32  Sup.  Ct.  316;  Pull- 
man Co.  V.  State  ex  rel.  Coleman, 
216  U.  S.  56,  54  L.  Ed.  378,  30 
Sup.  Ct.  232;  Western  U.  Tel.  Co. 
V  State  ex  rel.  Coleman,  216  U.  S. 
1,  54  L.  Ed.  355,  30  Sup.  Ct.  19C; 
New  York  Cent.  &  H.  River  Co.  v. 
United  States.  212  U.  S.  500,  53 
L.  Ed.  624,  29  Sup.  Ct.  309;  Texas 
&  P.  R.  Co.  V.  Abilene  Cotton  Oil 
Co.,  204  U.  S.  426,  51  L.  Ed.  553, 
27  Sup.  Ct.  350.  9  Ann.  Cas.  1075; 
Texas  &  P.  R.  Co.  v.  Musg.  202  U. 
S.  242,  50  L.  Ed.  1011,  26  Sup.  Ct. 
628;  Gulf.  C.  &  S.  F.  R.  Co.  v. 
Hefley,  158  U.  S.  98,  39  L.  Ed.  910, 
15  Sup.  Ct.  802;  Alabama  Great 
Southern  R.  Co.  v.  George  H.  Mc- 
Fadden  &  Bros.,  232  Fed.  1000; 
Central  R.  of  New  Jersey,  v.  United 
States,  143  C.  C.  A.  569,  229  Fed. 
501;  Hocking  Valley  R.  Co.  v. 
United  States,  127  C.  C.  A.  285,  210 
Fed.  735;  Illinois  Cent.  R.  Co.  v. 
S.  Segari  &  Co.,  205  Fed.  998; 
United  States  v.  Philadelphia  & 
R.  Ry.  Co..  184  Fed.  543;  Gamble- 
Rohinson  Commission  Co.  v.  Chi- 
cago &  N.  W.  R.  Co.,  94  C.  C.  A. 
217,  168  Fed.  161,  21  L.  R.  A.   (N. 


S.)  982,  16  Ann.  ('as.  613;  Chicago, 

B.  &  Q.  R.  Co.  V.  United  States.  85 

C.  C.  A.   194,   157  Fed.  830. 
Alabama.     Seaboard  Air  Line  R. 

Co.  V.  Patrick,  10  Ala.  App.  341, 
65  So.  437;  Central  of  Georgia  R. 
Co.  V.  Birmingham  Sand  &  Brick 
Co.,  9  Ala.  App.  419,  64  So.  202; 
Northern  Alabama  R.  Co.  v.  Wilson 
Mercantile  Co..  9  Ala.  App.  269,  63 
So.  34;  Central  of  Georgia  R.  Co.  v. 
Patterson,  6  Ala.  App.  494,  60  So. 
465;  Louisville  &  N.  R.  Co.  v.  Mc- 
Mullen,  5  Ala.  App.  662,  59  So.  683; 
Southern  Ry.  Co.  v.  Harrison,  119 
Aa.  539,  43  L.  R.  A.  385,  72  Ann. 
St.  Rep.  936,  24  So.  552. 

Colorado.  Atchison.  T.  &  S.  F.  R. 
Co.  V.  Bowman.  61  Colo.  477.  158 
Pac.  814. 

Georgia.  Central  of  Georgia  R. 
Co.  V.  Curtis,  14  Ga.  App.  716, 
82  S.  E.  318;  Charleston  &  W.  C.  R. 
Co.  V.  Thompson,  13  Ga.  App.  528, 
80  S.  E.  1097;  Atlantic  Coast  Line 
R.  Co.  V.  Thomasville  Live  Stock 
Co.,  13  Ga.  App.  102,  78  S.  E.  1019; 
Georgia  R.  R.  v.  Creety,  5  Ga.  App. 
424,  63  S.  E.  528;  Savannah,  F.  & 
W.  Ry.  Co.  V.  Bundick,  94  Ga.  775, 
21  S.  E.  995. 

Indiana.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Talge  Mahogany  Co., 

Ind.  .  112  N.  E.  890:    St. 

Louis  Southwestern  R.  Co.  v.  J.  S. 
Patterson  Const.  Co.,  181  Ind.  304, 
104  N.  E.  512;  Wabash  R.  Co.  v. 
Priddy.  179  Ind.  483,  101  N.  E.  724; 
Baltimore  &  O.  S.  W.  R.  Co.  v. 
New  Albany  Box  &  Basket  Co.,  48 
Ind.  App.  647,  94  N.  E.  906,  96  N. 
E.  28;  Terre  Haute  &  L.  R.  Co.  v. 
Erdel.  158  Ind.  344,  62  N.  E.  706. 

Iowa.    Cedar  Rapids  Fuel  Co.  v. 

Illinois    Cent.    R.    Co.,    Iowa 

,  160  N.  W.  353. 


452 


Duties  to  Interstate  Shippees. 


[^  257 


publication  iu  the  form  and  manner  as  required  by  the 
statute,  it   thereby  becomes  the   legal   rate   or  charge 


Kansas.  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Theis,  96  Kan.  494,  152  Pac. 
619;  Christl  v.  Missouri  Pac.  R. 
Co.,  92  Kan.  580,  141  Pac.  587; 
Metz  V.  Missouri  Pac.  R.  Co..  90 
Kan.  463,  135  Pac.  578;  Oregon  R. 
&  Nav.  Co.  V.  Thisler,  90  Kan.  5* 
132  Pac.  539;  Schenberger  v.  Union 
Pac.  R.  Co.,  84  Kan.  79,  33  L.  R. 
A.  (N.  S.)  391,  113  Pac.  433;  Chi- 
cago, R.  I.  &  P.  Ry.  Co.  V.  Hubbell, 
54  Kan.  232,  38  Pac.  266. 

Kentucky.  Robinson  v.  Louis- 
ville &  N.  R.  Co.,  160  Ky.  235,  169 
S.  W.  831;  Louisville  &  N.  R.  Co. 
V.  Coquillard  Wagon  Works'  As- 
signees, 147  Ky.  530,  144  S.  W. 
1080;  Chesapeake  &  O.  R.  Co.  v. 
Maysville  Brick  Co.,  132  Ky.  (543, 
116  S.  W.  1183. 

Louisiana.  Louisiana  Ry.  &  Nav. 
Co.  V.  Holly,  127  La.  615,  53  So. 
883;  Foster,  Glassel  Co.  v.  Kansas 
City  Southern  R.  Co.,  121  La.  1053, 
46  So.  1014. 

Minnesota.  Victor  Produce  Co. 
V.  Western  Transit  Co.,  135  Minn. 
121.  160  N.  W.  248. 

Missouri.  Foster  Lumber  Co.  v. 
Atchison,  T.  &  S.  F.  R.  Co..  270 
Mo.  629,  194  S.  W.  281;  Sunderland 
Bros.  Co.  v.  Baltimore  &  O.  S.  W. 
R.  Co.,  196  Mo.  App.  471,  190  S. 
W.  650;  Mott  Store  Co.  v.  St.  Louis 
&  S.  F.  R.  Co.,  184  Mo.  App.  50, 
168  S.  W.  322;  Dunne  &  Grace  v. 
St.  Louis  &  S.  W.  R.  Co.,  166  Mo. 
App.  372,  148  S.  W.  997;  Sutton 
V.  St.  Louis  &  S.  F.  R.  Co.,  159 
Mo.  App.  685,  140  S.  W.  76;  Drey 
&  Kahn  Glass  Co.  v.  Missouri  Pac. 
R.  Co.,  156  Mo.  App.  178,  136  S. 
W.  757;  Ward  v.  Missouri  Pac.  Ry. 
Co.,  158  Mo.  226,  58  S.  W.  28;  Ger- 
ber  V.  Wabash  R.  Co.,  63  Mo.  App. 
145;  Southern  Wire  Co.  v.  St.Louis 


Bridge   &   Tunnel    R.   Co.,   38    Mo. 
App.  191. 

New  Hampshire.  Clough  &  Co. 
V.  Boston  &  M.  R.  R.,  77  N.  H.  222, 
Ann.  Cas.  1915B  1195,  90  Atl.  863. 

New  Jersey.  Kells  Mill  &  Lum- 
ber Co  V.  Pennsylvania  R.  Co.,  89 
N.  J.  L.  490,  98  Atl.  309;  Spada  v. 
Pennsylvania  R.  Co.,  86  N.  J.  L. 
187,  92  Atl.  379. 

New  Mexico.  Enderstein  v.  Atch- 
ison, T.  &  S.  F.  R.  Co.,  21  N.  M. 
548,  157  Pac.  670;  Pecos  Valley  & 
N.  E.  R.  Co.  V.  Harris,  14  N.  M.  410, 
94  Pac.  951. 

New  York.  Greenwald  v.  New 
York  Cent.  &  H.  River  R.  Co..,  95 
N.  Y.  Miss.  122,  159  N.  Y.  Supp. 
15;  Pennsylvania  R.  Co.  v.  MogI, 
71  N.  Y.  Misc.  412,  128  N.  Y.  Supp. 
643;  Baltimore  &  O.  R.  Co.  v.  La 
Due,  128  N.  Y.  App.  Div.  594,  112 
N.  Y.  Supp.  964. 

North  Carolina.  Virginia-Caro- 
lina Peanut  Co.  v.  Atlantic  Coast 
Line  R.  Co.,  166  N.  C.  62,  82  S. 
E.  1. 

North  Dakota.  Knapp  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co., 
34  N.  D.  466,  159  N.  W.  81. 

Ohio.  Erie  R.  Co.  v.  Steinberg, 
94  Ohio  St.  189,  L.  R.  A.  1917B 
787,  Ann.  Cas.  1917E  661,  113  N. 
E.  814. 

Oklahoma.  Missouri,  K.  &  T.  R. 
Co.  V.  Walston,  37  Okla.  517,  133 
Pac.  42. 

Pennsylvania.  Carr  v.  Pennsyl- 
vania R.  Co.,  88  N.  J.  L.  235,  96 
Atl.  588;  United  States  Horse  Shoe 
Co.  V.  American  Exp.  Co.,  250  Pa. 
527,  95  Atl.  706;  Central  R.  Co.  of 
New  Jersey  v.  Mauser,  241  Pa.  603, 
49  L.  R.  A.   (N.  S.)  92,  88  Atl.  791. 

South  Carolina.  Southern  Ry. 
Co.  V.  Wilmont  Oil  Mills,  105  S.  C. 


§  258]  Filing  and  Publication  of  Ratks.  453 

which  all  shijipers  are  bound  to  pay  and  all  carriers 
are  required  to  collect.''"  Such  published  rates  and 
charges  may  be  unlawful  because  exorbitant  or  discrim- 
inatory in  violation  of  sections  1  and  3  of  the  Act,  but 
they  remain  the  legal  rates  and  charges  until  set  aside 
by  the  Commission.'^ 

§  258.  Foregoing  Rule  Equally  Applicable  to  Tran- 
sit and  Special  Services  Provided  in  Tariffs.  The  prin- 
cii)le  that  a  rate,  when  pu))lished,  is  binding  upon  both 
carrier  and  shipper  and  cannot  be  departed  from,  except 
and  until  it  has  been,  in  due  course,  found  by  the  Com- 
mission to  be  unlawful,  governs  also  all  transit  and  other 
special  services  provided  in  the  taritfs  of  carriers.  They, 
too,  must  be  enforced  in  accordance  with  their  terms, 
and  when  provisions  therein  are  free  and  clear  from 
ambiguity,  no  agreement  between  the  shipper  and  the 
carrier  assigning  another  meaning  to  them  may  lawfully 
be  substituted.  The  Interstate  Commerce  Commission 
will  not  sanction  a  departure  from  their  plain  meaning 

51,  89  S.  E.  476;    Saunders  v.  At-  Virginia.    Atlantic  Coast  Line  R. 

lantic   Coast   Line   R.   Co.,    101    S.  Co.   v.   Virginia  Mfg.  Co.,   119  Va. 

C.  11,  85  S.  E.  167.  5.  89  S.  E.  103;  Southern  R.  Co.  v. 

Tennessee.     Louisville   &   N.    R.  Wilcox,  99  Va.  394,  39  S.  E.  144. 

Co.  V.  Hobbs,  136  Tenn.  512,  190  36.    See  cases  cited  under  note 

S.  W.  461;   Louisville  &  N.  R.  Co.  35,  supra. 

V.  Montgomery,  136  Tenn.  171,  188  37.    Texas  &  P.  R.  Co.  v.  Abilene 

S.  W.  1146;    Roberts  v.  Nashville,  Cotton  Oil  Co.,   240  U.  S.   426,   51 

C.  &  St.  L.  R.  Co.,  135  Tenn.  48,  L.  Ed.  553,  27  Sup.  Ct   350,  9  Ann. 

185S.  W.  69;  Rather  &  Co.  v.  Nash-  Cas.  1075;   Texas  &  P.  Ry.  Co.  v. 

ville,  C.  &  St.  L.  R.  Co.,  131  Tenn.  Mugg,  202  U.  S.  242,  50  L.  Ed.  1011, 

289,  174  S.  W.  1113.  26  Sup.  Ct.  628;   Gulf,  C.  &  S.  F. 

Texas.    Pecos  &  N.  T.  Ry.  Co.  v.  Ry.  Co.  v.  Hefley,  158  U.  S.  98,  39 

Hall,    Tex.    Civ.    App.    ,  L.  Ed.  910,  15  Sup.  Ct.  802;  Franke 

189  S.  W.  535;  Atchison,  T.  &  S.  F.  Grain  Co.  v.  Illinois  Cent.  R.  Co.. 

Ry.    Co.   v.    Smyth,   Tex.    Civ.  27   I.  C.  C.   625;    Crescent  Coal  & 

App.  ,  189  S.  W.  70;    Wichita  Mining  Co.  v.  Chicago  &  E.  L  R. 

Falls   &   W.   Ry.   Co.   of   Texas   v.  Co..    24    I.    C.    C.    149;    Church   v. 

Asher,  Tex.  Civ.  App.  ,  Minneapolis  &  St.  L.  Ry.  Co.,  14 

171  S.  W.  1114;  Texas  &  P.  R.  Co.  S.  D.  443,  85  N.  W.  1001.  In  Franke 

v.   Leslie,  62   Tex.  Civ.   App.   380,  Grain  Co.  v.  Illinois  Cent.  R.  Co.. 

131  S.  W.  824.  supra,  the  case  of  Kiel  Wooden- 
Vermont.     Fitzgerald    v.    Grand  ware  Co.  v.  Chicago,  M.  &  St.  P. 

Trunk  R.  Co.,  63  Vt.  169,  13  L.  R.  Ry.  Co.,  18  I.  C.  C.  242,  was  dis- 

A.  70,  22  Atl.  76.  approved. 


454  Duties  to  Intebstate  Shippers.  [^  258 

imtil,  in  a  proper  proceeding  and  upon  a  proper  record, 
such  rules  have  been  found  to  be  unlawful  under  the 
Act.'' 

§  259.  Forwarders  are  Shippers  within  Statute  Pro- 
hibiting Refunds  from  Published  Rates  and  Charges.  Tlie 
statute  prohibits  all  carriers  from  refunding  or  remitting 
in  any  manner  or  by  any  device  any  portion  of  their  pub- 
lished rates,  fares  or  charges.  An  allowance  to  a  ship- 
per of  a  percentage  upon  the  freight  shipped  by  him 
over  the  line  of  a  carrier  as  an  inducement  to  ship  over 
that  line  is  unlawful.'^  Forwarders  of  freight  who  ship 
goods  in  their  own  name,  for  others,  are  shippers  within 
the  meaning  of  this  statute.*"  An  arrangement,  there- 
fore, between  a  carrier  and  a  firm  engaged  in  the  busi- 
ness of  forwarding  freight  in  its  own  name  for  others 
by  which  the  forwarder  was  paid  a  commission  on  all 
the  commodities  shipped  over  the  carrier's  line,  is  a 
violation  of  the  statute.*^ 

Such  allowances  are  not  for  "transportation  ser- 
vices" within  the  meaning  of  Section  15  of  the  Act; 
nor  are  they  within  the  rule  that  a  carrier  has  the  right 
to  employ  persons  to  solicit  business  and  to  pay  them 
for  such  work.  When  such  payments  for  the  solicitation 
of  business  are  made  to  a  shipper,  they  constitute  un- 
lawful rebates  and  concessions  condemned  by  the  law. 
"Any  payment  made  by  a  carrier  to  a  shipper,"  said 
Mr.  Justice  Holmes  in  Lehigh  V.  R.  Co.  v.  United 
States,  cited  supra,  "in  consideration  of  his  shipping 
goods  over  the  carrier's  line  comes  within  the  i)rohibit- 
ing  words.  It  is  true,  no  doubt,  that  George  W.  Sheldon 
&  Company  in  the  performance  of  the  services  for 
which  it  is  paid,  maintains  offices  here  and  abroad,  ad- 

38.  Peters  MiU  Co.  v.  Chicago,  53;  Interstate  Commerce  Commis- 
B    &  Q.  R.  Co.,  38  I.  C.  C.  245.  gion  v.  Delaware,  L.  &    W.  R.  Co., 

39.  Wight  V.  United  States.  167  22O  U.  S  235,  55  L.  Ed.  448,  31 
U.   S.   512,   42   L.  Ed.   258,   17   Sup. 

Ct.  822.  ^P- 

40.  Great  Northern  R.  Co.  v.  41.  Lehigh  Valley  R.  Co.  v. 
O'Connor,  232  U.  S.  508,  58  L.  Ed.  United  States,  243  U.  S.  444,  61  L. 
703,  34  Sup.  Ct.  380,  8  N.  C.  C.  A.  Ed.  839,  37  Sup.  Ct.  434. 


'^  260]         Filing  and  Publication  of  Iiates.  455 

vertisos  tho  railroad,  solicits  traffic  for  it,  does  various 
other  useful  things,  and,  in  short,  we  assume,  benefits 
the  road  and  earns  its  money,  if  it  were  allowable  to 
earn  money  in  that  way.  It  is  true  also  that  in  Inter- 
state Commerce  Commission  v.  F.  H.  Peavey  &  Co.,  222 
U.  S.  42,  56  L.  Ed.  83,  32  Sup.  Ct.  22,  an  owner  of 
property  transported  was  held  entitled,  under  sec.  15  of 
the  Act  to  Regulate  Commerce,  to  an  allowance  for 
furnishing  a  part  of  the  transportation  that  the  carrier 
was  bound  to  furnish.  So  Union  P.  R.  Co.  v.  Updike 
Grain  Co.,  222  U.  S.  215,  56  L.  Ed.  171,  32  Sup.  Ct.  Rep. 
39,  and  United  States  v.  Baltimore  &  0.  R.  Co.,  231  U. 
S.  274,  58  L.  Ed.  218,  34  Sup.  Ct.  Rep.  75.  But  that 
case  goes  to  the  verge  of  what  is  i)ermitted  by  the  act. 
The  services  rendered  by  George  W.  Sheldon  &  Com- 
pany, although  in  a  practical  sense  'connected  with  such 
transportation,'  were  not  connected  with  it  as  a  neces- 
sary part  of  the  carriage,— were  not  'transportation 
service,'  in  the  language  of  Union  P.  R.  Co.  v.  Updike 
Grain  Co.,^222  U.  S.  215,  220,  56  L.  Ed.  171,  173,  32  Sup. 
Ct.  Rep.  39, — and,  in  our  opinion,  were  not  such  ser- 
vices as  were  contemplated  in  the  Act  of  June  29,  1906, 
chap.  3591,  sec.  4,  34  Stat,  at  L.  589,  Comp.  Stat.  1913, 
sec.  8583,  amending  sec.  15  of  the  original  act.  On  the 
other  hand,  the  allowance  for  them  falls  within  the 
plain  meaning  of  sec.  2  of  the  Act  of  1906,  to  which  we 
referred  above. ' ' 

§  260.  Oral  Contracts  or  Special  Arrangements  for 
Interstate  Transportation  Contravening  Published  Sched- 
ules, Unlawful.  As  the  statute  forbids  all  carriers  from 
refunding  or  remitting  in  any  manner  or  by  any  device 
any  portion  of  the  scheduled  rates,  or  extending  to  any 
shipper  any  privilege  or  facility  except  such  as  are 
specified  in  the  established  tariffs  filed  with  the  Com- 
mission, all  contracts  or  special  arrangements  as  to 
interstate  shipments  in  conflict  with  or  in  contravention 
of  the  schedules,  rules  and  regulations  thus  standardized 
and  filed,  are  unlawful.*-     Shippers  as  well  as  carriers 

42.    United  States.     Southern  R.       Ed.  836,  36  Sup.  Ct.  469;  Atchison, 
Co.  V.  Prescott,  240  U.  S.  632,  60  L.       T.   &   S.   F.   R.   Co.   v.    Moore.   233 


456 


Duties  to  Interstate  Shippers. 


[§  260 


are  required  to  take  notice  of  tlie  tariffs  on  file,  and  as 
long  as  they  remain  operative  they  are  conclusive  as  to 
the  rights  of  all  parties.  To  give  effect  to  oral  agree- 
ments and  to  maintain  their  supremacy  over  the  pub- 


U.  S.  182,  58  L.  Ed.  906,  34  Sup. 
Ct.  558:  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Robinson,  233  U.  S.  173,  58 
L.  Ed.  901,  34  Sup.  Ct.  556;  Great 
Northern  R.  Co.  v.  O'Connor,  232 
U.  S.  508,  58  L.  Ed.  703,  34  Sup. 
Ct.  380,  8  N.  C.  C.  A.  53;  Kansas 
City  Southern  R.  Co.  v.  Carl,  227 
U.  S.  639,  57  L.  Ed.  683,  33  Sup. 
Ct.  391;  Wells,  Fargo  &  Co.  v. 
Neiman-Marcus  Co.,  227  U.  S.  469, 
57  L.  Ed.  600,  33  Sup.  Ct.  267; 
United  States  v.  Union  Stock  Yard 
&  Transit  Co.  of  Chicago,  226  U. 
S.  286,  57  L.  Ed.  226,  33  Sup.  Ct. 
83;  Chicago  &  A.  R.  Co.  v.  Kirby, 
225  U.  S.  155,  56  L.  Ed.  1033,  32 
Sup.  Ct.  648,  Ann.  Cas.  1915A 
501;  American  Exp.  Co.  v.  United 
States,  212  U.  S.  522,  53  L.  Ed.  635. 
29  Sup.  Ct.  315;  J^ewis.  Leonhardt 
&  Co.  V.  Southern  R.  Co.,  133  C.  C. 
A.  237,  217  Fed.  321:  Crdahy  Pack- 
ing Co.  V.  Grand  Trunk  Western 
R.  Co.,  131  C.  C.  A.  401,  215  Fed. 
93;  Engemoen  v.  Chicago,  St.  P., 
M.  &  0.  R.  Co..  127  C.  C.  A.  426. 
210  Fed.  896;  Duplan  Silk  Co.  v. 
American  &  Foreign  Marine  Ins. 
Co.,  124  C.  C.  A.  18,  205  Fed.  724; 
Clegg  V.  St.  Louis  &  S.  F.  R.  Co., 
122  C.  C.  A.  273,  203  Fed.  971; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Kinkade,  203  Fed.  165;  Elwood 
Grain  Co.  v.  St.  .Joseph  &  G.  I.  R. 
Co.,  121  C.  C.  A.  153,  202  Fed.  845; 
Taenzer  &  Co.  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  112  C.  C.  A.  153,  191 
Fed.  543;  Chesapeake  &  O.  Ry.  Co. 
V  Standard  Lumber  Co.,  98  C.  C. 
A.  81,  174  Fed.  107;  Chicago  &  A. 
R.  Co.  V.  United  States,  84  C.  C.  A. 
324,  156  Fed.  558,  26  L.  R.  A.  (N. 
S.)   551;   Crowell  &  Spencer  Lum- 


ber Co.  V.  Texas  &  P.  Ry.  Co.,  17 
I  C.  C.  333;  Hood  &  Sons  v.  Del- 
aware &  H.  Co.,  17  I.  C.  C.  155; 
Swift  &  Co.  V.  Chicago  &  A.  R.  Co., 
16  I.  C.  C.  420. 

Alabama.  Northern  Alabama  R. 
Co.  V.  Wilson  Mercantile  Co.,  9  Ala. 
App.  269,  63  So.  34;  Central  oi 
Georgia  R.  Co.  v.  Patterson,  6 
Ala.  App.  494,  60  So.  465. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Faulkner,  111  Ark.  430, 
164  S.  W.  763. 

Indiana.  Wabash  R.  Co.  v.  Prid- 
dy.  179  Ind.  483,  101  N.  E.  724. 

Massachusetts.  New  York.  N.  H. 
&  H.  R.  Co.  V.  York  &  Whitney  Co., 
215  Mass.  36,  102  N.  E.  366. 

Missouri.  Morrison  Grain  Co.  v. 
IMissouri  Pac.  R.  Co.,  182  Mo.  App. 
339.   170   S.  W.  404. 

New  Hampshire.  Clough  &  Co. 
V.  Boston  &  M.  R.  R..  77  N.  H.  222, 
Ann.  Cas.  1915B  1195,  90  Atl.  863. 

Pennsylvania,  United  States 
Horse  Shoe  Co.  v.  American  Exp. 
Co.,  250  Pa.  527,  95  Atl.  706; 
Central  R.  Co.  of  New  Jersey  v. 
Mauser,  241  Pa.  603,  49  L.  R.  A. 
(N.  S.)    92.  88  Atl.  791. 

South  Carolina.  Jordan  v.  South- 
ern R.  Co..  100  S.  C.  284,  84  S.  E. 
871. 

Tennessee.  Roberts  v.  Nashville. 
C.  &  St.  L.  R.  Co.,  135  Tenn.  48. 
185   S.  W.   69. 

Texas.     St.  Louis,  I.  M.  &  S.  Ry. 

Co.  V.  West  Bros.,  Tex.  Civ. 

App.  ,  159  S.  W.  142. 

Virginia.  Southern  R.  Co.  v, 
Wilcox,  99  Va.  394,  39  S.  E.  144. 

Washington.  Southern  Pac.  Co. 
V.  Frye  &  Bruhn  82  Wash.  9.  143 


§  260]         Filing  and  Pubu cation  of  Rates. 


457 


lislied  Pfliediiles,  would  defeat  the  principle  of  equal 
treatment  to  all  shippers,  one  of  the  puri)oses  of  the 
Interstate  Commerce  Act. 

It  is  the  duty  of  a  carrier  to  collect  the  regularly 
established  and  published  rates  and  to  obser^^e  all  the 
regulations  Hied  with  the  Commission,  and  it  is  the  cor- 
responding obligation  of  a  shipper  to  pay  such  rates 
and  to  adhere  to  such  regulations,  regardless  of  any 
understanding,  agreement  or  any  other  act  of  the  part- 
ies.*'   For  example,  a  contract  for  the  transportation  of 


43.  United  States.  Dayton  Coal 
&  Iron  Co.  V.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.,  239  U.  S.  446,  60 
L.  Ed.  375.  ;>6  Sup.  Ct.  137;  Kansas 
City  Southern  R.  Co.  v.  C.  H. 
Albers  Commission  Co.,  223  U.  S. 
573,  56  L.  Ed.  556,  32  Sup.  Ct.  316; 
Macon  Grocery  Co.  v.  Atlantic 
Coast  Line  R.  Co.,  215  U.  S.  501, 
54  L.  Ed.  300,  30  Sup.  Ct.  184; 
Hocking  Valley  R.  Co.  v.  Lack- 
awanna Coal  &  Lumber  Co.,  140  C. 
C  A.  408,  224  Fed.  930;  Union 
Pac.  R.  Co.  V.  American  Smelting 
&  Refining  Co.,  121  C.  C.  A.  182,  202 
Fed.  720. 

Alabama.  Central  of  Georgia  R. 
Co.  V.  Southern  Ferro  Concrete  Co., 
193  Ala.  108,  68  So.  981;  Central 
of  Georgia  R.  Co.  v.  Birmingham 
Sand  &  Brick  Co.,  9  Ala.  App.  419, 
64  So.  202:  Southern  Ry.  Co.  v. 
Harrison.  IIP  Ala.  539,  43  L.  R.  A. 
385,  72  Ann.  St.  Rep.  936,  24  So. 
552. 

Arkansas.  St.  Louis  &  S.  F.  Ry. 
Co.  V.  Ostrander,  66  Ark.  567,  52 
S.  W.  435;  Kizer  v.  Texarkana  & 
Ft.  S.  Ry.  Co.,  66  Ark.  348,  50  S. 
W.  871. 

Georgia.  Central  of  Georgia  It. 
Co.  V.  Curtis.  14  Ga.  App.  716,  82 
S.  E.  318;  Brantley  Co.  v.  Ocean 
S  S.  Co.,  5  Ga.  App.  844,  63  S.  E. 
1129;  Raleigh  &  G.  R.  Co.  v.  Swan- 
.s;on,  102  Ga.  754.  39  L.  R.  A.  275. 
28  S.  E.  601;    Savannah.  F.  &  W. 


Ry.  Co.  V.  Bundick,  94  Ga.  775,  21 
S.  E.  995. 

Indiana.  Baltimore  &  O.  S.  W. 
R.  Co.  V.  New  Albany  Box  &  Basket 
Co.,  48  Ind.  App.  647,  94  N.  E.  906, 
96  N.  E.  28. 

Indian  Territory.  Missouri,  K. 
&  T.  Ry.  Co.  V.  Bowles,  1  Indian  T. 
250,  40  S.  W.  899. 

Iowa.  Coad  v.  Chicago,  St.  ?., 
M.  &  O.  R.  Co.,  171  Iowa  747,  154 
N.  W.  396;  Lanner  v.  Wabash  R. 
Co.,  131  Iowa  405,  108  N.  W.  759. 

Kansas.  Oregon  R.  &  Nav.  Co. 
V.  Thisler,  90  Kan.  5,  133  Pac.  539; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Hub- 
bell,  54  Kan.  232,  38  Pac.  266. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Coquillard  Wagon  Works' 
Assignees,  147  Ky.  530,  144  S.  W, 
1080. 

Louisiana.  Foster,  Glassel  Co.  v. 
Kansas  City  Southern  R.  Co.,  121 
La.  1053,  46  So.  1014. 

Maine.  Johnson  v.  New  York.  N. 
H.  &  H.  R.  R.,  Ill  Me.  263,  88  Atl. 
988. 

Mississippi.  Gulf  &  S.  I.  R.  Co. 
V  Laurel  Cotton  Mills,  91  Miss. 
166.  45  So.  982. 

Missouri.  Dunne  &  Grace  v.  St. 
Louis  &  S.  W.  R.  Co..  166  Mo.  App. 
372.  148  S.  W.  997;  Sutton  v.  St. 
Louis  &  S.  F.  R.  Co..  159  Mo.  App. 
685,  140  S.  W.  76;  Gerber  v.  Wa- 
bash R.  Co.,  63  Mo.  App.   145. 


458 


Duties  to  Interstate  Shippers. 


[§  260 


livestock  to  a  market  within  a  limited  time,  when  not 
anthorized  or  provided  for  by  the  published  tariffs  of 
the  carrier,  is  void.**  Similarly  a  verbal  contract  with 
an  agent  of  a  railway  company  for  the  transportation 
of  race  horses  on  a  certain  train,  which  was  in  conflict 
with  the  schedules  and  regulations  of  the  carrier,  pub- 
lished as  required  by  Section  6,  was  held  to  be  in- 
valid.*^   In  another  case,*"^  a  shipper  sued  an  interstate 


New  Hampshire.     Clough  &  Co. 

V  Boston  &  M.  R.  R.,  77  N.  H.  222. 
Ann.  Cas.  i915B  1195,  90  Atl.  S63. 

New  Mexico.  Pecos  Valley  &  N. 
E.  R.  Co.  V.  Harris,  14  N.  M.  410, 
94   Pac.   951. 

New  York.  Pennsylvania  R.  Co. 
V.  Titus,  216  N.  Y.  17,  L.  R.  V. 
1916E  1127,  109  N.  E.  857;  Penn- 
sylvania R.  Co.  V.  Titus,  78  N.  Y. 
Misc.  347,  138  N.  Y.  Supp.  325; 
Houseman  v.  Fargo,  124  N.  Y. 
Supp.  1086;  Baltimore    &  O.  R.  Co. 

V  La  Due,  128  N.  Y.  App.  Div.  594, 
112  N.  Y.  Supp.  964. 

North  Carolina,  Virginia-Caro- 
lina Peanut  Co.  v.  Atlantic  Coast 
Line  R.   Co.,   166   N.   S.   62,    82    S. 

E.  1;  Yorke  Furniture  Co.  v. 
Southern  R.  Co.,  162  N.  C.  138,  78 
S.  E.  67. 

North  Dakota.  Smith  v.  Great 
Northern  R.  Co.,  15  N.  D.  195,  107 
N.  W^  56. 

Oklahoma.     Atchison,  T.  &  S.  F. 

Ry.  Co.  V.  Ehret,  Okla.  , 

152  Pac.  1107;  St.  Louis  &  S.  F.  R. 

Co.   V.   Pickens,   Okla.   , 

151   Pac.  1055;    Atchison,  T.  &  S. 

F.  R.  Co.  V.  Bell,  31  Okla.  238,  38 
L.  R.  A.  (N.  S.)  351,  120  Pac.  987; 
Atchison,  T.  &  S.  F.  R.  Co.  v. 
Holmes,  18  Okla,  92,  90  Pac.  22. 

Pennsylvania.  Crane  R.  Co.  v. 
Philadelphia  &  R.  R.  Co.,  253  Pa. 
246,  97  Atl.  1055;  Central  R.  Co. 
of  New  Jersey  v.  Mauser,  241  Pa. 


603,  49  L.R.A.  (N.S.)  92,  88  Atl.  791. 

South  Carolina.  Hardaway  v. 
Southern  R.  Co.,  90  S.  C.  475.  Ann. 
Cas.  1913D  266,  73  S.  E.  1020. 

South  Dakota.  Melody  v.  Great 
Northern  Co.,  25  S.  D.  606,  30  L. 
R.  A.  (N.  S.)  568,  Ann.  Cas.  1912C 
727,  127  N.  W.  543;  Church  v. 
Minneapolis  &  St.  L.  Ry.  Co.,  14 
S.   D.  443,  85  N.  W.  1001. 

Tennessee.  Roberts  v.  Nashville, 
C.  &  St.  L.  R.  Co.,  135  Tenn.  48 
185  S.  W.  69. 

Texas.     Texas  &  P.  Ry.   Co.  v. 

Dickson  Bros., Tex.  Civ.  App. 

,  167  S.  W.  33;  Texas  &  P.  Ry. 

Co.  v.  Clark,  4  Tex.  Civ.  App.  611, 
23  S.  W.  698. 

Virginia.  Southern  R.  Co.  v. 
Wilcox,  99  Va.  394,  39  S.  E.  144. 

Washington.  Fisher  v.  Great 
Northern  R.  Co.,  49  Wash.  205,  95 
Pac.  77. 

44.  Engemoen  v.  Chicago,  St.  P., 
M.  &  0.  R.  Co.,  127  C.  C.  A.  426, 
210  Fed.  896. 

45.  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Robinson,  233  U.  S.  173,  58  L. 
Ed.  901,  34  Sup.  Ct.  556,  in  which 
the  court  said:  "The  Supreme 
Court  of  the  State  in  this  case  af- 
firmed the  instruction  of  the  trif^l 
court  upon  which  the  case  was 
given  to  the  jury  and  held  that 
the  oral  contract  was  binding  un- 
less it  was  affirmatively  shown 
that  the  written  agreement,  based 
upon     the     filed     schedules,     was 


§    2(J()|  l''lLI.\(;    AMI    I'riW.lCAIluX    (IK    IiATES.  459 

can-ifM'  for  tlie  violation  of  a  sp(*<'ial  contract  made  witli 
him  whereby  the  carrier  a^'reed  to  exi)edite  a  slii])T]ient 
by  making-  connections  witli  a  particuhir  ti-ain,  for  the 
I'c^iihirly  estal)lished  rates  a])i)lyin<i:  to  all  sliijjments. 
in  coiidemninii'  such  s))ecial  arran<i,'ements  not  o])en 
to  all  shii)])ers  on  like  tcniis,  the  court  said:*'  ''The 
imi)lied  agreement  of  a  common  carrier  is  to  carry  safely 
and  deliver  at  destination  within  a  reasona>)le  time.  It 
is  otherwise  when  the  action  is  for  a  breach  of  a  con- 
tract to  carry  witliin  a  |»articuh\r  time,  oi-  to  make  a 
particular  connection,  or  to  carry  by  a  ])articular  train. 
The  railroad  comi)any,  by  its  contract,  l^ecame  liable 
for  the  consequence  of  a  failure  to  transi)ort  according 
to  its  terms.  Evidence  of  diligence  would  not  excuse. 
If  the  action  had  been  for  the  common-law  carrier  lia- 
bility, evidence  that  there  had  been  no  unreasonable 
delay  would  be  an  answer.  But  the  company,  by  enter- 
ing into  an  agreement  for  expediting  the  shipment, 
came  under  a  liability  different  and  more  burdensome 
than  would  exist  to  a  shipper  who  made  no  such  special 
contract.  P^or  such  a  special  service  and  higher  respon- 
sibility it  might  clearly  exact  a  higher  rate.  But  to  do 
so  it  must  make  and  publish  a  rate  open  to  all.  This 
was  not  done.  The  shipper,  it  is  also  plain,  was  con- 
tracting for  an  advantage  which  was  not  extended  to 
all  others,  both  in  the  undertaking  to  carry  so  as  to 
give  him  a  ]iarticular  expedited  service,  and  a  remedy 

brought  to  the  knowledge  of  the  effect  of  such  filed  schedules  and 

shipper  and  its  terms  assented  to  the   duty   of   the   shipper   to   take 

by  him.     This  ruling  ignored  the  notice  of  the  terms  of  such  rates 

terms  of  shipment  set  forth  in  the  and    the   obligation    to    be    bound 

schedules  and  permitted  recovery  njereby  in  the  absence  of  the  ex- 

upon  the  contract  made  in-  vioU-  .optional   circumstances   to   which 

tion  thereof  in  a  case  where  there 

was  no   proof  that   there   was   an 

attempt   to   violate   the   published 

rates  by   a  fraudulent   agreement 

showing  rebating  or  false  billing  ^*^^-^'   ^^   ^"P-   ^t.    648.   Ann.   Cas. 

of   the   property,   and   no   circum-  1914A  501. 

stances  which  would  take  the  casv?  47.    See  also  Lewis,  Leonhardt  & 

out  of  the  rulings  heretofore  made  Co.  v.  Southern  R.  Co.,  133  C.  C.  A. 

by   this   court   as   to   the   binding  237,  217  Fed.  321. 


we  have  referred." 

4(i.     Chicago    &    A.    R.    Co.    v. 
Kirby.    225    U.    S.    155,    56    L.    Ed. 


460 


Duties  to  Intekstate  Shippers. 


[§  260 


for  delay  not  due  to  negligence.  An  advantage  ac- 
corded by  special  agreement  which  affects  the  value  of 
the  service  to  the  shipper  and  its  cost  to  the  carrier 
should  be  published  in  the  tariffs,  and  for  a  breach  of 
such  a  contract,  relief  will  be  denied,  because  its  al- 
lowance without  such  publication  is  a  violation  of  the 
act.  It  is  also  illegal  because  it  is  an  undue  advantage 
in  that  it  is  not  one  open  to  all  others  in  the  same  situa- 
tion." 

§  261.  Shippers  and  Passengers  Conclusively  Pre- 
sumed to  Have  Knowledge  of  Published  Schedules  of 
Rates,  Fares  and  Charges.  All  shippers  and  passengers 
are  charged  with  notice  of  the  schedules  of  rates,  fares, 
charges  and  regulations  duly  published  and  on  file  with 
the  Interstate  Commerce  Commission.**     The   rates   so 


48.  United  States.  Southern  R. 
Co.  V.  Prescott,  240  U.  S.  632,  60 
L.  Ed.  836,  36  Sup.  Ct.  469;  Louis- 
ville &  N.  R.  Co.  V.  Maxwell  237 
U.  S.  94,  59  L.  Ed.  853,  35  Sup. 
Ct.  494,  L.  R.  A.  1915E  665;  Ber- 
wind-White  Coal  Min.  Co.  v.  Chi- 
cago &  E.  R.  Co.,  235  U.  S.  371, 
59  L.  Ed.  275,  35  Sup.  Ct.  131; 
Boston  &  M.  R.  Co.  v.  Hooker, 
233  U.  S.  97,  58  L.  Ed.  868,  34  Sup. 
Ct.  526,  L.  R.  A.  1915B  450,  Ann. 
Cas.  1915D  593;  Kansas  City 
Southern  R.  Co.  v.  Carl,  227  U. 
S.  639,  57  L.  Ed.  683,  33  Sup.  Ct. 
391;  Illinois  Cent.  R.  Co.  v.  Hen- 
derson Elevator  Co.,  226  U.  S.  441. 
57  L.  Ed.  290,  33  Sup.  Ct.  176; 
Chicago  &  A.  R.  Co.  v.  Kirby,  225 
U.  S.  155.  56  L.  Ed.  1033,  32  Sup. 
Ct.  648,  Ann.  Cas.  1914A  501;  New 
York  Cent.  &  H.  River  R.  Co.  v. 
United  States,  212  U.  S.  500,  53 
L.  Ed.  624,  29  Sup.  Ct.  309;  Tex- 
as &  P.  R.  Co.  V.  Abilene  Cotton 
Oil  Co.,  204  U.  S.  426,  51  L.  Ed. 
553,  27  Sup.  Ct.  350,  9  Ann.  Cas. 
1075;  Texas  &  P.  R.  Co.  v.  Mugg, 
202   U.   S.   242,   50  U   Ed.   1011,   26 


Sup.  Ct.  628;  Great  Lakes  Coal 
and  Dock  Co.  v.  Seither  Transit 
Co.,  136  C.  C.  A.  110,  220  Fed.  28; 
Storm  Lake  Tub  &  Tank  Factory 
V.  Minneapolis  &  St.  L.  R.  Co., 
209  Fed.  895;  Taenzer  &  Co.  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  112  C. 
C.  A.  153,  191  Fed.  543;  Morris- 
dale  Coal  Co.  V.  Pennsylvania  R. 
Co.,  176  Fed.  748;  United  States 
V.  Great  Northern  R.  Co.,  157  Fed. 
288;  Van  Patten  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  81  Fed.  545;  Franke 
Grain  Co.  v.  Illinois  Cent.  R.  Co., 
27  I.  C.  C.  625;  Pole  Stock  Lum- 
ber Co.  V.  Gulf  &  S.  I.  R.  Co.,  26 
I.  C.  C.  451;  Wisconsin  Lime  & 
Cement  Co.  v.  Cleveland,  C.  C.  & 
St.  L.  Ry.  Co.,  25  I.  C.  C.  366; 
Johnson  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  25  I.  C.  C.  207;  Humboldt 
Steamship  Co.  v.  White  Pass  &  Y. 
R.  Co.,  25  I.  C.  C.  136;  Faribault 
Furniture  Co.  v.  Chicago  G.  W. 
R.  Co.,  25  I.  C.  C.  40;  Crescent 
Coal  &  Mining  Co.  v.  Chicago  & 
E.  R.  Co.,  24  I.  C.  C.  149;  Foll- 
mer  &  Co.  v.  Bellingham  B.  &  B. 
C.  R.  Co.,  21  I.  C.  C.  617;    Running 


§  261] 


Filing  and  Pubijcation  of  Rates, 


461 


filed  and  promul^atod  become  the  lawful  established 
rates  and  are  as  binding  as  though  they  had  been  pre- 
scribed by  statute.  The  carrier  must  collect  the  lawful 
rate  so  fixed,  and  the  shipper  is  compelled  to  pay  it.  A 
passenger's  and  shipper's  knowledge  of  the  scheduled 
rates  and  fares  is  conclusively  presumed,  and  actual  want 
of  notice  of  the  schedule  is  no  defense  to  an  action  for 
the  lawful  rate.^''    In  the  leading  case  of  Texas  «fc  P.  K. 


V  Chicago,  St.  P.,  M.  &  O.  Ry.  Co., 
19  I.  C.  C.  565;  Blinn  Lumber 
Co.  V.  Southern  P.  Co.,  18  L  C.  C. 
430;  Snyder-Malone-Donahue  Co. 
V.  Chicago,  B.  &  Q.  R.  Co.,  18  I. 
C.  C.  498;  Williamette  Pulp  & 
Paper  Co.  v.  Northern  P.  Ry.  Co., 
18  I.  C.  C.  388;  Laning-Harris 
Coal  &  Grain  Co.  v.  St.  Louis  & 
S.  F.  R.  Co.,  15  I.  C.  C.  37;  Whit- 
comb  V.  Chicago  &  N.  W.  Ry.  Co., 
15  I.  C.  C.  27. 

Alabama.  Southern  Ry.  Co.  v. 
Harrison,  119  Ala.  539,  43  L.  R. 
A.  385,  72  Am.  St.  Rep.  936,  24 
So.   552. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Faulkner,  111  Ark.  430, 
164  S.  W.  763. 

Georgia.  Central  of  Georgia  R. 
Co.  V.  Curtis,  14  Ga.  App.  716,  82 
S.  E.  318. 

Indiana.  Cleveland,  C,  C.  &  St. 
Ij.  Ry.  Co.  V.  Talge  Mahogany  Co., 
Ind.  ,  112  N.  E.  890. 

Iowa.  Herminghausen  v.  Adams 
Exp.  Co.,  167  Iowa  230,  149  N. 
W.   234. 

Kansas.  Christl  v.  Missouri  Pac. 
R.  Co.,  92  Kan.  580,  141  Pac.  587. 

Kentucky.  Robinson  v.  Louis- 
ville &  N.  R.  Co..  160  Ky.  235,  169 
S.  W.  831:  Louisville  &  N.  R.  Co. 
V.  Allen,  152  Ky.  145.  153  S.  W. 
198. 

Missouri.  Sloop  v.  Delano.  182 
Mo.  App.  299.  170  S.  W.  385. 

New  York.  Pennsylvania  R.  Co. 
V.  Titus,  158  N.  Y.  App.  Div.  880, 
142  N.  Y.   Supp.   1134. 


Oklahoma.     St.  Louis  &  S.  F.  R. 

Co.  V.  Pickens, Okla. ,  151 

Pac.  1055. 

Oregon.  ZoUer  Hop  Co.  v.  South- 
ern Pac.  Co.,  72  Or.  262,  143  Pac. 
931;  Baldwin  Sheep  &  Land  Co. 
V.  Columbia  R.  Co.,  58  Or.  285. 
114    Pac.    469. 

South  Carolina.  Hurdaway  v. 
Southern  R.  Co.,  90  S.  C.  475,  Ann. 
Cas.   1913D  266,   73   S.  E.   1020. 

Texas.     Wardlow     v.     Andrews, 

Tex.   Civ.   App.  ,   180    S. 

W.  1161;    Pacific  Exp.  Co.  v.  Ross, 

Tex.    Civ.   App.   ,    154   S. 

W.  340. 

49.  Reno  v.  Wholesale  Liquor 
Store  v.  Southern  P.  Co.,  23  I.  C. 
C.  516;  McLean  Lumber  Co.  v. 
Louisville  &  N.  R.  Co.,  22  L  C. 
C  349;  Ohio  Iron  &  Metal  Co.  v. 
Wabash  R.  Co.,  18  I.  C.  C.  299; 
Interstate  Remedy  Co.  v.  Ameri- 
can Exp.  Co.,  16  I.  C.  C.  436; 
Gough  &  Co.  V.  Illinois  Cent.  R. 
Co.,  15  I.  C.  C.  280;  Poor  Grain 
Co.  v.  Chicago,  B.  &  Q.  R.  Co.,  12 
I.  C.  C.  469.  In  Poor  v.  Chicago.  B. 
&  Q.  R.  Co.,  supra,  a  case  fre- 
quently cited  on  this  point,  the 
Commission  said:  "A  carrier  is 
required  by  law  to  published  the 
rate  and  also  clearly  to  indicate 
the  route  over  which  the  published 
rate  is  applicable.  When  so  pub- 
lished the  rate  named  and  the 
route  designated  stand  as  the  law, 
binding  as  well  upon  the  shipper 
as  upon  the  carrier.  A  schedule 
of  rates  publislied   in  the  manner 


4(i2  Duties  to  Interstate  Shippers.  [§  2G1 

Co.  V.  J\Iuii-,u,"  the  Supreme  (V)iut,  in  discussing  the  ef- 
fect of  a  sliii)pei's  ignorance  of  tlio  published  rates,  and 
quoting  from  another  opinion,  said:  "Tlie  clear  effect 
of  the  decision  was  to  declare  that  one  who  has  obtained 
from  a  common  carrier  transportation  of  goods  from 
one  State  to  another  at  a  rate,  specified  in  the  bill  of 
lading,  less  than  the  published  schedule  rates  filed  witli 
and  approved  by  the  Interstate  Commerce  Commission, 
and  in  force  at  the  time,  whether  or  not  he  knew  that 
the  rate  obtained  was  less  than  the  schedule  rate,  is  not 
entitled  to  recover  the  goods,  or  damages  for  their  de- 
tention, ui)on  the  tender  of  payment  of  the  amount  of 
charges  named  in  the  bill  of  lading,  or  of  any  sum  less 
than  the  schedule  charges;  in  other  words,  that  what- 
ever may  be  the  rate  agreed  upon,  the  carrier's  lien  on 
the  goods  is,  by  force  of  the  act  of  Congress,  for  the 
amount  fixed  by  the  published  schedule  of  rates  and 
charges,  and  this  lien  can  be  discharged,  and  the  con- 
signee can  become  entitled  to  the  goods,  only  by  the 
payment,  or  tender  of  payment,  of  such  amount.  Such 
is  now  the  supreme  law,  and  by  it  this  and  the  courts 
of  all  other  States  are  bonnd." 

§  262.  Courts  Bound  by  Published  Rates  and 
Charges  Until  Set  Aside  by  Commission.  The  rates  and 
charges  fixed  in  the  schedules  for  interstate  and  foreign 
transportation  by  carriers  subject  to  the  Act  and  all 
rules  and  regulations  affecting  the  rates,  fares  and 
charges  on  file  with  the  Commission  and  duly  published, 
are  binding  upon  all  federal  and  state  courts  as  well  as 
upon  the   shippers  and  carriers.     The  Interstate  Com- 

provided  by  law  speaks  with  equal  fulfilling  the  law's  requirements; 
authority  to  the  shipper  and  to  in  either  event  the  carrier  must 
the  carrier,  and  both  are  equally  collect  and  the  shipper  must  pay 
chargeable  with  notice  of  the  rate  the  rate  as  published  for  the  route 
and  of  the  route  over  which  the  over  which  the  shipments  actual- 
rate  is  made  applicable.  A  mis-  ly  move.  This  general  rule  is 
take  by  a  carrier  in  responding  to  founded  not  only  on  the  strict 
any  inquiry  by  a  shipper,  either  language  of  the  law  but  also  upon 
as  to  the  rate  or  as  to  the  route,  a  sound  public  policy." 
will  relieve  neither  the  one  nor  50.  202  U.  S.  242.  50  L.  Ed. 
the  other   from    the   obligation   of  lull,  26  Sup.  Ct.  628. 


§    2(52  J  FlLIN(;   AND    PUHLICATIOX    OF    KaTES. 


463 


merce  Commission  ijosscsscs,  imder  tlio  statute,  tlio  ex- 
clusive jjower  to  determine  i)rimarily  tiie  reasonable- 
ness of  the  rates  and  diaries  published  in  the  schedules, 
and  without  such  a  preliminary  determination  ))y  the 
Conunission,  the  courts  have  no  jurisdiction  to  pass  ui)on 
the  reasonableness  of  interstate  rates  and  cliarges.**' 
Actions  for  damages,  thci<'fore,  without  a  ]>rior  tinding 
h\  the  Interstate  Commerce  Commission,  cannot  be 
maintained  in  the  courts  foi'  the  exaction  of  an  unreason- 


51.  Pennsylvania  R.  Co.  v. 
Stineman  Coal  Min.  Co.,  242  U.  S. 
298.  61  L.  Ed.  316,  37  Sup.  Ct.  118; 
Louisville  &  N.  R.  Co.  v.  Ohio 
Valley  Tie  Co.,  242  U.  S.  288,  61  L. 
Ed.  305,  37  Sup.  Ct.  120;  Loomis 
V.  Lehigh  Valley  R.  Co.,  240  U. 
S.  4:?,  60  L.  Ed.  517,  36  Sup.  Ct. 
228;  Pennsylvania  R.  Co.  v.  Clark 
Bros.  Coal  Min.  Co.,  238  U.  S.  4o6, 
59  L.  Ed.  1406,  35  Sup.  Ct.  806; 
Illinois  Cent.  R.  -Co.  v.  Mulberry 
Hill  Coal  Co.  238  U.  S.  275,  59  L. 
Ed.  1306,  35  Sup.  Ct.  760;  Penn- 
sylvania R.  Co.  v.  Puritan  Coal 
Min.  Co.,  237  U.  S.  121,  59  L.  Ed. 
867,  35  Sup.  Ct.  484;  Meeker  v. 
Lehigh  Valley  R.  Co.,  236  U.  S. 
412,  59  L.  Ed.  644,  35  Sup.  Ct.  328, 
Ann.  Cas.  1916B  691:  Texas  &  P. 
R.  Co.  V.  American  Tie  &  Timber 
Co.,  234  U.  S.  138,  58  L.  Ed.  1255, 
:H  Sup.  Ct.  885:  Baer  Bros.  Mer- 
cantile Co.  V.  Denver  &  R.  G.  R. 
Co..  233  U.  S.  479,  58  L.  Ed.  1055, 
34  Sup.  Ct.  641;  Boston  &  M.  R. 
Co.  V.  Hooker,  233  U.  S.  97,  58 
L.  Ed.  868,  34  Sup.  Ct.  526.  L.  R. 
A.  1915B  450.  Ann.  Cas.  1915D  593; 
A.tchison.  T.  &  S.  F.  R.  Co.  v. 
United  States,  232  U.  S.  199,  58  L. 
Ed.  568.  34  Sup.  Ct.  291;  Morris- 
dale  Coal  Co.  v.  Pennsylvania  R. 
Co.,  230  U.  S.  304,  57  L.  Ed.  1494, 
33  Sup  Ct.  938:  Mitchell  Coal  & 
Coke  Co.  v.  Pennsylvania  R.  Co., 
230  U.  S.  247,  57  L.  Ed.  1472,  33 
Sup.  Ct.  916;    United  States  v.  Pa- 


cific &  A.  Ry.  &  Nav.  Co.,  228  U. 
S.  87,  57  L.  Ed.  742,  33  Sup.  Ct. 
44.'];  Savage  v.  Jones,  225  U.  S. 
501,  56  L.  Ed.  1182,  32  Sup.  Ct. 
715;  Interstate  Commerce  Com- 
mission v.  Union  Pac.  R.  Co.,  222 
U.  S.  541,  56  L.  Ed.  308,  32  Sup.  Ct. 
108;  Robinson  v.  Baltimore  &  O. 
R.  Co.,  222  U.  S.  506,  56  L.  Ed. 
288,  32  Sup.  Ct.  114;  Interstate 
Commerce  Commission  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  218  U.  S.  88,  54 
L.  Ed.  946,  30  Sup.  Ct.  651;  Bal- 
timore &  0.  R.  Co.  V.  United  States 
ex  rel.  Pitcairn  Coal  Co.,  215  U. 
S.  481,  54  L.  Ed.  292.  30  Sup.  Ct. 
164;  Texas  &  P.  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  51  L. 
Ed.  553,  27  Sup.  Ct.  350,  9  Ann. 
Cas.  1075;  Lehigh  Valley  R.  Co. 
v._  Meeker,  128  C.  C.  A.  311,  211 
Fed.  785;  Lehigh  Valley  R.  Co. 
V.  Clark.  125  C.  C.  A.  235.  207  Fed. 
717;  Atlantic  Coast  Line  R.  Co.  v. 
Macon  Grocery  Co..  92  C.  C.  A. 
114.  166  Fed.  206;  Meeker  v.  Le- 
high Valley  R.  Co..  162  Fed.  .154; 
Howard  Supply  Co.  v.  Chesapeake 
&  0.  Ry.  Co.,  162  Fed.  188:  Ameri- 
can Union  Coal  Co.  v.  Pennsyl- 
vania R.  Co.,  159  Fed.  278:  Van 
Patten  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  81  Fed.  545:  Wickwire  Steel 
Co.  V.  New  York  Cent.  &  H.  River 
R.  Co..  27  I.  C.  C.  168:  St.  Louis 
Southwestern  R.  Co.  v.  .1.  S.  Pat- 
terson Const.  Co.,  181  Ind.  304,  104 
N.  E.  512. 


464  Duties  to  Inteestate  Shippers.  [§  262 

able  rate  on  an  iiiterstate  shipment  if  the  rate  charged 
was  in  fact  that  fixed  in  the  schedule  published  in  con- 
formity with  the  provisions  of  Section  6.  The  published 
rate  is  controlling  until  found  to  be  unreasonable  by  the 
Interstate  Commerce  Commission  in  an  appropriate  pro- 
ceeding before  that  body. 

The  necessity  of  having  one  tribunal  to  determine 
the  question  of  the  reasonableness  of  a  rate  appears 
evident;  for,  otherwise,  the  rate  to  be  collected  would 
be  subject  to  the  conflicting  judgments  of  numerous 
juries  as  expressed  in  their  verdicts  in  the  various  courts 
of  the  country.  To  permit  the  rates  charged  for  inter- 
state shipments  to  depend  upon  the  verdicts  of  juries 
in  the  courts,  would  defeat  one  of  the  purposes  of  the 
Act,  that  is,  one  rate  to  all  shippers  for  similar  serv- 
ices. Uniformity  and  equality  could  not  be  secured  by 
separate  suits  before  separate  courts  involving  the  rea- 
sonableness of  a  rate  and  practice.  The  evidence 
might  vary,  and  of  course  the  verdict  would  vary  with 
the  result  that  one  shipper  would  succeed  before  one  jury 
and  another  fail  before  a  different  jury  where  the  rea- 
sonableness of  the  same  rate  or  practice  was  involved. 
Different  verdicts  would  occasion  inequality  between 
two  shippers.''^ 

52.    Robinson  v.  Baltimore  &  0.  gate  complaints  and  to  order  the 

R.   Co.,   222   U.    S.    506,   56   L.    Ed.  correction   of  any  non-conformity 

288,  32  Sup.  Ct.  114,  in  which  the  to  those  standards  by  an  appropri- 

court  said:     "For  the  purpose  of  ate  change  in  schedules  and  by  due 

preventing   unreasonable   charges,  reparation     to     injured     persons, 

unjust  discriminations  and  undue  When  the  purpose  of  the  act  and 

preferences,  a  system  of  establish-  the    means    selected    for    the    ac- 

ing,  maintaining  and  altering  rate  complishment  of  that  purpose  are 

schedules  and  of  redressing  inju-  understood,  it  is  altogether  plain 

ries  resulting  from  their  enforce-  that    the    act    contemplated    that 

ment  was  adopted  whereby  publici-  such  an  investigation  and  order  by 

ty   would   be   given    to   the   rates,  the  designated  tribunal,  the  Inter- 

their    application    would    be    obli-  state       Commerce       Commission, 

gatory  and  uniform  while  they  re-  should    be   a    prerequisite    to    the 

mained  in  effect,  and  the  matter  right    to    seek    reparation    in    the 

of  their  conformity  to  prescribed  courts  because  of  exactions  under 

standards     would     be     committed  an  established  schedule  alleged  to 

primarily    to    a    single    tribunal  be  violative  of  the  prescribed  stan- 

clothed  with  authority  to  investi-  dards.    And  this  is  so,  because  the 


<§  262]         Filing  and  Pubucation  of  Rates. 


465 


Hence,  Congress  placed  tlie  duty  of  passin<<  upon 
the  reasonableness  of  the  scheduled  rates  and  charges 


existence  and  exercise  of  a  right 
to  maintain  an  action  of  that  char- 
acter, in  the  absence  of  such  an 
investigation  and  order,  would  be 
repugnant  to  the  declared  rule 
that  a  rate  established  in  the 
mode  prescribed  should  be 
deemed  the  legal  rate  and  obliga- 
tory alike  upon  carrier  and  ship- 
per until  changed  in  the  manner 
provided,  would  be  in  derogation 
of  the  power  expressly  delegated 
to  the  Commission,  and  would  be 
destructive  of  the  uniformity  and 
equality  which  the  act  was  desig- 
nated to  secure.  In  the  case  of 
Texas  and  Pacific  Railway  Co.  v. 
Abilene  Cotton  Oil  Co.,  204  U.  S. 
426,  440,  where  such  a  right  was 
asserted  and  denied,  it  was  said 
by  this  court:  'Indeed  the  recog- 
nition of  such  a  right  is  wholly  in- 
consistent with  the  administrative 
power  conferred  upon  the  Commis- 
sion and  with  the  duty,  which  the 
statute  casts  upon  that  body,  of 
seeing  to  it  that  the  statutory  re- 
quirement as  to  uniformity  and 
equality  of  rates  is  observed. 
Equally  obvious  is  it  that  the  ex- 
istence of  such  a  power  in  the 
courts,  independent  of  prior  ac- 
tion by  the  Commission,  would 
lead  to  favoristism,  to  the  enforce- 
ment of  one  rate  in  one  jurisdic 
tion  and  a  different  one  in  another, 
would  destroy  the  prohibitions 
against  preferences  and  discrimi- 
nation, and  afford,  moveover,  a 
ready  means  by  which  through 
collusive  proceedings,  the  wrongs 
which  the  statute  was  intended  to 
remedy  could  be  successfully  in- 
flicted. Indeed  no  reason  can  be 
perceived  for  the  enactment  of 
the  provision  endowing  the  admin- 


istrative tribunal,  which  the  act 
created,  with  power,  on  due  proof, 
not  only  to  award  reparation  to  a 
particular  shipper,  but  to  com- 
mand the  carrier  to  desist  from 
violation  of  the  act  in  the  future, 
thus  compelling  the  alteration  of 
the  old  or  the  filing  of  a  new  sched- 
ule, conformably  to  the  action  of 
the  Commission,  if  the  power  was 
left  in  courts  to  grant  relief  on 
complaint  of  any  shipper,  upon  the 
theory  that  the  established  rate 
could  be  disregarded  and  be  treat- 
ed as  unreasonable,  without  refer- 
ence to  previous  action  by  the 
Commission  in  the  premises.  This 
must  be,  because,  if  the  power  ex- 
isted in  both  courts  and  the  Cora- 
mission  to  originally  hear  com- 
plaints on  this  subject,  there 
might  be  a  divergence  between  the 
action  of  the  Commission  and  the 
decision  of  a  court.  In  other 
words,  the  established  schedule 
might  be  found  reasonable  by  the 
Commission  in  the  first  instance 
and  unreasonable  by  a  court  act- 
ing originally,  and  thus  a  conflict 
would  arise  which  would  render 
the  enforcement  of  the  act  impos- 
sible.' It  is  true,  as  was  urged  in 
argument,  that  in  that  case  the 
complaint  against  the  established 
rate  was  that  it  was  unreasonable, 
while  here  the  complaint  is  that 
the  rate  was  unjustly  discrimina- 
tory. But  the  distinction  is  not 
material.  The  power  of  the  Com 
mission  over  the  two  complaints  is 
the  same,  one  is  as  likely  to  become 
the  subject  of  diverging  opinions 
and  conflicting  decisions  as  is  the 
other,  and  if  a  court,  acting  origi 
nally  upon  either,  were  to  sustain 
it  and  award  reparation,  the  con- 


1    ConLrol    Carriors    .10 


4()(^  Duties  to  Interstate  Shippees.  [§  262 

on  the  Commission  exclusively  so  that  a  uniform  stand- 
ard might  be  fixed  and  followed.  This  principle  was 
first  pronounced  by  the  Supreme  Court  in  1907."''  In 
the  case  cited,  suit  was  brought  in  a  court  of  the  state 
of  Texas  to  recover,  because  of  an  exaction  by  a  carrier, 
on  an  interstate  shipment,  of  an  alleged  unreasonable 
rate  although  the  rate  charged  was  that  stated  in  the 
schedules  duly  filed  and  published  in  accordance  with 
the  provisions  of  section  6,  The  court  held  that  the 
relief  prayed  for  was  inconsistent  with  all  the  provisions 
of  the  Interstate  Commerce  Act  since  by  that  act  the 
rates,  as  filed,  were  controlling  until  they  had  been  de- 
clared to  be  unreasonable  by  the  Commission  on  a  com- 
plaint made  to  that  body.  It  was  pointed  out  that  any 
other  view  would  give  rise  to  inextricable  confusion, 
would  create  unjust  preferences  and  undue  discrimina- 
tions, and  would  frustrate  the  purposes  of  the  Act. 

§  263.  Carriers  Must  Collect  the  Scheduled  Rates 
and  Charges  for  Interstate  Transportation.  A  strict  ad- 
herence to  the  published  rates  and  charges  is  absolutely 
essential  to  avoid  discriminations  and  preferences  be- 
tween shippers.  Neither  estoppel,  ignorance  of  the  ship- 
per nor  a  mistake  of  the  carrier's  agent  can  defeat  the 
prime  purpose  of  the  law  that  the  shipper  must  pay  and 
the    carrier   must   collect   the    lawful    published   rate.'^* 

fusing  anomaly  would  be  presented  sence  of  an  appropriate  finding  and 

of  a  rate  being  adjudged  to  be  vio-  order  of  the  Commission.     Texas 

lative  of  the  prescribed  standards  and  Pacific  Railway  Co.  v.  Abilene 

and  yet  continuing  to  be  the  legal  Cotton  Oil  Co.,  supra,  pp.  442,  446." 

rate,  obligatory  upon  both  carrier  53.    Texas  &  P.  R.  Co.  v.  Abilene 

and  shipper.    Of  course,  the  provl-  Cotton   Oil   Co..  204  U.   S.   426,  51 

sion  in  section  22,  as  also  the  pro-  L.  Ed.  553,  27  Sup.  Ct.  350.  9  Ann. 

vision  in  section   9,  must  be  read  Cas.  1075. 

in  connection  with  other  parts  of  54.  United  States.  Dayton  Coal 
the  act  and  be  interpreted  with  &  Iron  Co.  v.  Cincinnati,  N.  O.  & 
due  regard  to  its  manifest  pur-  T.  P.  R.  Co.,  239  U.  S.  446,  60  L. 
pose,  and,  when  that  is  done,  it  Ed.  375,  36  Sup.  Ct.  137;  Louis- 
is  apparent  that  neither  provision  ville  &  N.  R.  Co.  v.  Maxwell,  237 
recognizes  or  implies  that  an  ac-  U  S.  94,  59  L.  Ed.  853,  35  Sup.  Ct. 
tion  for  reparation,  such  as  is  here  494,  L.  R.  A.  1915E  665;  Armour 
sought,  may  be  maintained  in  any  Packing  Co.  v.  Untied  States,  20J 
court,  Federal  or  state,  in  the  ab-  U.  S.  56,  52  L.  Ed.  681,  28  Sup.  Ct. 


§  2()3| 


Filing  and  Pi'blicatiox  of  Rates. 


4G7 


Hence,  an  erroneous  (|uotation  of  a  rat<'  l)y  an  a,a:ent  of 
a  carrier  to  a  prospective  patron  hinds  neitlicr  sliipix-r 
nor  carrier  as  both  are  presumed  in  law  to  know  the 
(U)rrect  rate."     Wliile   Ihis  ruh'  often    results  in    undue 


428;  Alabama  Great  Southern  R. 
Co.  V.  George  H.  McFadden  & 
Bros.,  232  Fed.  1000;    Van  Patten 

V  Chicago,  M.  &  St.  P.  Ry.  Co..  81 
Fed.   545. 

Georgia.  Seaboard  Air-Line  Ry. 
Co.  V.  Luke.  19  Ga.  App.  lOd.  90  S. 
E.   1041. 

Indiana.  Cleveland,  C,  C.  &  St. 
L.  Ry.  Co.  V.  Talge  Mahogany  Co., 
Ind.  .  112  N.  E.  890. 

Iowa.  Herminghausen  v.  Adams 
Exp.  Co.,  167  Iowa,  230,  149  N.  W. 
234. 

Kansas.  Atchison,  T.  &  S.  F.  Ry. 
Co.  V.  Superior  Refining  Co.,  83 
Kan.  732.  112  Pac.  604. 

New  York.    Pennsylvania  R.  Co. 

V  Titus,  156  N.  Y.  App.  Div.  830, 
142  N.  Y.  Supp.  43;  Pennsylvania 
R.  Co.  V.  Titus,  78  N.  Y.  Misc.  347. 
138  N.  Y.  Supp.  325;  Baltimore  & 
O.  R.  Co.  V.  La  Due.  128  N.  Y.  App. 
Div.  594,  112  N.  Y.  Supp.  964. 

South  Dakota.  Great  Northern 
Ry.  Co.  V.  Loonan  Lumber  Co.,  25 
S.  D.  155,  125  N.  W.  644. 

Texas.     Wichita  Falls  &  W.  Ry 

Co.  of  Texas  v.  Asher,  Tex. 

Civ.  App.  ,  171  S.  W.  1114. 

Washington.  Cceur  d'Alene  &  S. 
R.  Co.  V.  Union  Pac.  Co..  49  Wash. 
244,  95  Pac.  71. 

55.  United  States.  Illinois  Cent. 
R.  Co.  V.  Henderson  Elevator  Co.. 
226  U.  S.  441,  57  L.  Ed.  290,  33 
Sup.  Ct.  176;  Armour  Packing  Co. 
V.  United  States,  209  U.  S.  56,  52 
L  Ed.  681,  28  Sup.  Ct.  428;  Ham- 
len  &  Sons  v.  Illinois  Cent.  R.  Co., 
212  Fed.  324;     Union   Pac.  R.  Co. 

V  American  Smelting  &  Refining 
Co.,  121  C.  C.  A.  182.  202  Fed. 
720;     Chesapeake  &   O.   R.   Co.   v. 


Hawkins,  98  C.  C.  A.  44.3,  174  Fed. 
.-j97,  26  L.  R.  A.   (N.  S.)   309. 

Alabama.  Central  of  Georgia  R. 
Co.  V.  Birmingham  Sand  &  Brick 
Co..  9  Ala.  App.  419,  64  So.  202. 

Arkansas.  St.  Louis,  I.  M.  &  3. 
R.  Co.  V.  Wolf,  100  Ark.  22,  Ann. 
Ca.s.   1913C  1384,   139  S.  W.  536. 

Georgia.  Central  of  Georgia  R. 
Co.  V.  Curtis,  14  Ga.  App.  716,  82 
S.  E.  318;  Raleigh  &  G.  R.  Co.  v. 
Swanson,  102  Ga.  754,  39  L.  R.  A. 
275,  28  S.  E.  601. 

Iowa.  Herminghausen  v.  Adams 
Exp.  Co.,  167  Iowa  230,  149  N.  W. 
234;  McManus  v.  Chicago  Great 
Western  R.  Co..  156  Iowa  350,  136 
N.  W.  769. 

Kansas.  Schenberger  v.  Union 
Pac.  R.  Co.,  84  Kan.  79,  35  L.  R. 
A    (N.  S.)  391,  113  Pac.  433. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Allen,  152  Ky.  145,  153  S. 
W.  198;  Chesapeake  &  0.  R.  Co. 
V.  Maysville  Brick  Co.,  132  Ky. 
G43,   116   S.  W.   1183. 

Louisiana.  Louisiana  Ry.  &  Nav. 
Co.  v.  HoUy,  127  La.  615,  53  So. 
882. 

Massachusetts.  New  York,  N.  H. 
&  H.  R.  Co.  V.  York  &  Whitney  Co.. 
215  Mass.  36,  102  N.  E.  366. 

Missouri.  Sunderland  Bros.  Co. 
V.  Baltimore  &  0.  S.  W.  R.  Co.. 
196  Mo.  App.  154.  190  S.  W.  650: 
Sloop  V.  Delano.  182  Mo.  App.  299, 
170  S.  W.  385;  Sutton  v.  St.  Louis 
&  S.  F.  R.  Co..  159  Mo.  App.  685. 
140  S.  W.  76. 

New  York.  Pennsylvania  R.  Co. 
V  Titus,  216  N.  Y.  17,  L.  R.  A.  1916 
E  1127,  109  N.  E.  857. 

North  Carolina.  Virginia  Caro- 
lina  Peanut  Co.  v.  Atlantic  Coast 


■4-68  Duties  to  Interstate  Shippers.  [§  263 

hardship  to  a  shipper  who  honestly  and  in  good  faith 
relies  upon  the  statement  of  a  carrier's  agent  as  to  the 
rate  applicable  to  his  shipment,  its  enforcement  on  the 
whole  is  beneficial  in  that  it  prevents  all  means  of  evad- 
ing the  published  rate  by  pleading  ignorance  as  an  ex- 
cuse. 

The  mistake  of  a  carrier's  agent,  if  binding  upon 
the  carrier,  would  afford  opportunities  for  fraud  and 
would  tend  to  destroy  the  uniform  operations  of  the 
published  tariff.  ''For  past  experience  shows  that  bill- 
ing clerks  and  other  agents  of  carriers  might  easily  be- 
come experts  in  the  making  of  errors  and  mistakes  in 
the  quotation  of  rates  to  favored  shippers,  while  other 
shippers,  less  fortunate  in  their  relations  with  carriers 
and  whose  traffic  is  less  important,  would  be  compelled 
to  pay  the  higher  published  rates.  Stability  and  equal- 
ity of  rates  are  more  important  to  commercial  inter- 
ests than  reduced  rates.  It  was  instability  and  in- 
equality that  were  the  special  evils  to  be  remedied;  it 
was  the  possibility  that  one  shipper,  in  one  way  or 
another,  whether  by  mistake  or  otherwise,  could,  and 
actually  did,  get  a  lower  rate  than  another  shipper  that 
led  to  more  stringent  legislation.     That  evil  the  present 

Line  R.   Co.,   166   N.   C.   62,   82   S.  Pennsylvania.    Central  R.  Co.  of 

E.  1.  New  Jersey  v.  Mauser,  241  Pa.  603, 

Oklahoma.     Atchison,  T.  &  S.  F 

Ry.  Co.  V.  Ehret,  Okla.  

152  Pac.  1107;     St.  Louis  &  S.  F, 

R.  Co.  V.  Pickens,  Okla.  

151  Pac.  1055;     St.  Louis  &  S.  F 


49  L.  R.  A.  (N.  S.)   92,  88  Atl.  791. 
Texas.        Wardlow  v.  Andrews, 

Tex.   Civ.   App.   ,   180   S. 

W.  1161;    Wichita  Falls  &  W.  Ry. 

Co.  of  Texas  v.  Asher,  Tex. 

R.  Co.  V.  Walton-Chandler  Lumber       Civ.   App.  ,   171    S.   W.   1114; 


Co.,    44    Okla.    452,    145    Pac.    340 


Texas  &  P.  R.  Co.  v.  Leslie,  62  Tex. 


Atchison,  T.  &  S.  F.  R.  Co.  v.  Bell,  ^jy    ^pp.  380;  131  S.  W.  824. 
31  Okla.  238,  38  L.  R.  A.   (N.  S.)  Vermont.       Fitzgerald  v.  Grand 

351,  120  Pac.  987;   Atchison,  T.  &  ^j.^^^^  ^    ^      53  y^   ^69,  13  L.  R. 
S.  F.  R.  Co.  V.  Holmes,  18  Okla.  92, 
90  Pac.  22. 

Oregon.  ZoUer  Hop  Co.  v.  South- 
ern Pac.  Co.,  72  Or.  262,  143  Pac.  V-  ^rye  &  Bruhn,  82  Wash.  9.  143 
931;  Baldwin  Sheep  &  Land  Co.  Pac.  163;  Fisher  v.  Great  North- 
V.  Columbia  R.  Co.,  58  Or.  285,  114  ern  R.  Co.,  49  Wash.  205,  95  Pac. 
Pac.  469.  77. 


A.  70,  22  Atl.  76. 
Washington.     Southern  Pac.  Co. 


§  264]        FiuNG  AND  Publication  of  Rates.  469 

amended   statute   meets   in   substantially    the    lan<(uage 
of  the  previous  legislation.'"^" 

§  264.  Illustrative  Cases  Wherein  the  Foregoing 
Rule  was  Applied  and  Enforced.  The  i)iinei|)l(;  enunci- 
ated in  the  foregoing  paragraph  was  applied  by  the 
courts  under  the  following  circumstances:  a  station 
agent  erroneously  (juoted  a  rate  of  sixty-eight  cents 
per  hundred  pounds  on  oranges  when  the  rate  on  file 
was  sixty-eight  cents  per  crate  of  eighty  pounds.  The 
shipper  paid  the  rate  quoted  and  two  months  later  the 
carrier  discovered  the  mistake  and  brought  suit  for  the 
difiference.  A  recovery  was  permitted,  the  court  stating 
that  a  rate  was  not  the  subject  matter  of  a  contract 
when  filed  and  published  with  the  Commission;"  an 
agent's  mistake  in  quoting  a  rate  of  sixty-eight  dollars 
on  a  carload  of  baskets  between  two  points  in  different 
states  when  in  fact  the  published  rate  in  the  schedules 
filed  with  the  Commission  was  $114.00,  did  not  bar  the 
carrier  from  recovering  the  lawful  rate.  The  act  of  the 
agent,  it  was  held,  did  not  create  an  estoppel  against 
the  carrier  and  prevent  it  from  collecting  the  full  legal 
rate;^^  a  shipper,  relying  upon  the  statement  of  an  agent 
that  the  rate  on  wheat  from  a  station  in  Kansas  to  a 
point  in  Texas  was  thirty-one  cents  per  hundred  pounds, 
shipped  two  cars,  but  on  delivery,  a  rate  of  forty-two 
cents  per  hundred  pounds  was  collected,  that  being  the 
rate  published  and  filed.  In  an  action  for  damages 
against  the  carrier  for  the  agent's  false  statement,  a 
recovery  was  denied  because  the  published  rate  control- 
led;°®  in  an  action  by  a  carrier  for  undercharge  for  a 
shipment  from  Columbus,  Ga.,  to  Birmingham,  Ala., 
due  to  the  failure  of  the  carrier's  agent  to  collect  the 
lawful  rate,  the  shipper  pleaded  a  counterclaim  alleging 
damages  for  the  failure  of  the  carrier  to  post  the  rates 

56.  Poor  Grain  Co.  v.  Chicago,  48  Ind.  App.  647,  94  N.  E.  906,  96 
B.  &  Q.  R.  Co.,  12  I.  C.  C.  418.  N.  E.  28. 

57.  Georgia  R.  R.  v.  Creety,  5  59.     Schenberger  v.  Union  Pac. 
Ga.  App.  424,  63  S.  E.  528.  R.  Co.,  84  Kan.  79,  33  L.  R.  A.  (N. 

58.  Baltimore  &  0.  S.  W.  R.  Co.  S.)   391,  113  Pac.  433. 
V.  New  Albany  Box  &  Basket  Co., 


470  l^UTIES  TO  IXTERSTATK   SHIPPERS.  [§    264 

ill  its  station,  but  the  coiut  held  that  tlie  defendant  had 
no  rig-lit  of  action  against  the  carrier,  irrespective  of 
whether  the  lawful  rate  was  posted  or  not;"*"  an  inter- 
state carrier,  fifteen  months  after  a  delivery  of  a  ship- 
ment of  peaches,  discovered  that  the  consignee  was  not 
charged  the  correct  rate  and  brought  an  action  for  the 
balance.  The  error  was  due  to  a  mistake  in  computing 
the  freight  charges.  It  was  held  that  a  recovery  against 
the  consignee  was  proper;'''  in  another  case  it  was  held 
that  an  error  of  an  agent  in  showing  the  shii)per  the 
wrong  tariff  sheet  did  not  prevent  the  collection  of  the 
lawful  rate;"^  in  one  case  it  was  held  that  after  a  ship- 
per had  voluntarily  paid  the  rate  called  for  in  the  ship- 
ing  contract,  the  carrier  could  not  thereafter  recover 
the  difference  between  the  contract  rate  and  the  sched- 
uled rate  for  the  reason  that  both  shipper  and  carrier 
were  presumed  to  know  the  published  rate  and  an  agree- 
ment to  carry  at  less  than  the  published  rate  was  illegal 
and  therefore  both  parties  were  in  pari  delicto  and  a 
recovery  for  the  difference  could  not  be  had,^^  but  this 
decision  is  contrary  to  the  controlling  decisions  of  the 
federal  courts  in  construing  the  Interstate  Commerce 
Act.*'* 

§  265.  Defense  of  Estoppel  to  Actions  Against 
Shippers  for  Undercharges.  The  defense  of  waiver  or 
estoppel  is  not  available  in  actions  by  common  carriers 
against  shippers  for  undercharges.  Thus,  where  a  ship- 
per paid  one  sum  for  the  transportation  of  goods  from  a 
point  in  one  state  to  a  point  in  another  and  thereafter 
the  carrier  discovered  that  the  proper  charges  had  not 

60.     Central   of   Georgia   R.   Co.       Elevator  Co.,  22G  U.  S.  441,  57  L. 
V   Birmingham  Sand  &  Brick  Co.,      Ed.  290,  33  Sup.  Ct.  176. 
9    Ala.    App.    419,    64    So.    202,    in  61.     Pennsylvania  R.  Co.  v.  Ti- 

.  .  ,     ^,                ,      .,^,    a,     T^„,-  tus,  216  N.  Y.   17,  L.   R.  A.   1916E 

which    the    court    cited    St.    Louis  '                           ' 

^       ^        .          T.     r,            o       1    ^.  1127,   109  N.  E.   857. 

Southwestern  R.  Co.  v.   Burckett,  ' 

62.  Sloop    V.     Delano,     182     Mo. 

229   U.   S.   603,   57   L.   Ed.   1347,   33  ^^^    299,  170  S.  W.  385. 

Sup.  Ct.  773;    Kansas  City  South-  gg     southern  Pac.  Co.  v.  Frye  & 

em  R.  Co.  v.  Carl,  227  U.  S.  639,  Bruhn,  82  Wash.  9,  143  Pac.  163. 

57  L.  Ed.  683,  33  Sup.  Ct.  391;  II-  64.    See  cases  in  notes  to  preced- 

linois  Cent.  R.  Co.  v.  Henderson  ing  section. 


§  265]         Filing  and  Publication  of  Rates.  471 

been  collected  and  that  a  balance  was  due,  the  shij^per 
could  not  set  up  as  a  defense  the  delay  of  the  carrier 
in  collecting  the  balance  due  and  the  fact  that  the  ])ur- 
chasers  of  the  ^oods  had  become  insolvent  so  that  the 
freight  charges  could  not  be  collected  from  them."''  "Ap- 
pellant has  cited  ne  authority,"  said  the  court,  "holding 
that  esto])pel  as  a  defen.'se  could  be  pleaded   against  a 
demand  for  the  charges  lixed  by  law  for  an  interstate 
shipment;  nor  has  any  authority,  on  an  analogous  prin- 
ciple been  cited;  nor  have  we  found  any  which   would 
justify  us  in  so  holding.     The  nearest  approach  to  an 
authority  holding  in  effect  that  estoppel  will  lie  in  cases 
of  the  character  here  under  consideration  is   Yazoo   & 
M.  V.  R.  R.  Co.  V.  Zemurray,  238  Fed.  789,  151  C.  C.  A. 
639.     But  in  that  case  the  court  expressly  stated  that 
no  feature  of  any  interstate  commerce  law  was  involved, 
and  the  case  was  controlled  by  the  statute  of  limitations. 
To  hold  that  the  carrier  can  do  indirectly  that  which 
it  cannot  do  directly  is  wholly   inconsistent   with   the 
letter  and  the  spirit  of  that  part  of  the  Interstate  Com- 
merce Act,  and  its  various  amendments,  regulating  inter- 
state rates  of  common  carriers.    In  L.  &  N.  R.  R.  Co.  v. 
Maxwell,  237  U.  S.  94,  35  Sup.  Ct.  494,  59  L.  Ed.  853, 
L.  R.  A.  1915E,  665,  plaintiff  sued  for  the  difference  in 
the   price   of    some   passenger  tickets   from    Nashville, 
Tenn.,  to  Salt  Lake  City  as  fixed  by  the  Interstate  Com- 
merce Commission  and  the   price   sold  at  by  plaintiff. 
Judgment   went  for  defendant   in  the    state   courts  of 
Tennessee,  and  the  case  was  taken  to  the  Supreme  Court 
of  United  States  by  writ  of  error.     In  reversing   the 
case  Mr.   Justice   Hughes   said:   'Under   the   Interstate 
Commerce  Act,  the  rate  of  the  carrier  duly  filed  is  the 
only  lawful  charge.    Deviation  from  it  is  not  permitted 
upon  any  pretext.     Shippers  and  travelers  are  charged 
with  notice  of  it,  and  they  as  well  as  the  carrier  must 
abide  by  it,  unless  it  is  found  by  the  commission  to  be 
unreasonable.    Ignorance  or  misquotation  of  rates  is  not 

65.      Bush    V.    Keystone    Driller      Co.,  Mo.  App.  199  s.  W. 

597. 


472  Duties  to  Interstate  Shippers.  [^  265 

an  excuse  for  payine:  or  charging  either  less  or  more 
than  the  rate  filed.  This  rule  is  undeniably  strict,  and 
it  obviously  may  work  hardship  in  some  cases,  but  it 
embodies  the  policy  which  has  been  adopted  by  Con- 
gress in  the  regulation  of  interstate  commerce  in  order 
to  prevent  unjust  discrimination.'  Central  of  Georgia 
Ry.  Co.  V,  Birmingham  Sand  &  Brick  Co.,  9  Ala.  App. 
419,  64  South.  202,  is  directly  to  the  point.  There  an 
error  was  made  in  estimating  freight  on  interstate  ship- 
ments, and  suit  brought  for  the  difference  between  the 
lawful  rate  and  the  amount  collected.  The  defense  was 
facts  tending  to  establish  estoppel;  as  in  the  instant 
case.  The  court  in  that  case  held  that  estoppel  would 
not  lie,  and  in  disposing  of  the  matter  used  this  lan- 
guage, which  we  think  clearly  reflects  the  spirit  of  the 
act  of  Congress  regulating  interstate  rates:  'The  neces- 
sary effect  of  all  these  decisions,  construing  and  apply- 
ing the  Interstate  Commerce  Act,  when  considered  to- 
gether is,  in  our  opinion,  that  the  carrier  cannot,  by  any 
act,  estop  itself  frjom  exacting  the  lawful  freight  rate. 
If  the  carrier  could  so  estop  itself,  then  it  would  lie 
within  the  carrier's  power,  by  purposely  putting  itself 
in  a  position  where  it  could  not  exact  the  lawful  rate 
of  a  shipper  it  desired  to  favor,  to  render  nugatory  one 
of  the  main  designs  of  the  act,  the  prevention  of  dis- 
crimination between  shippers;  and  for  the  law  to  coun- 
tenance the  doctrine  of  estoppel  in  cases  like  this  is  for 
the  law  to  say  through  the  courts  that  the  carrier  is 
estopped  from  doing  what  the  statute  mentioned  plainly 
requires  that  it  must  do — collect  the  lawful  rate  in  all 
cases,  and  nothing  greater  and  nothing  less,  by  any 
means  or  device  whatsoever.  We  cannot  escape  the 
conclusion  that  Congress  impliedly  intended  by  the  act 
mentioned  to  deny  to  consignors  and  consignees  the  de- 
fense of  estoppel  when  sued  by  the  cai'rier  for  the  law- 
ful rate,  since  such  a  defense  is  entirely  inconsistent 
with  and  destructive  of  the  purposes  of  the  act.'  It 
follows  from  the  above  and  foregoing  that  the  defense 
of  estoppel  in  our  judgment  is  not  available  in  the 
instant  case,  and  that  the  trial  court  was  correct  in 
sustaining  plaintiff's  demurrer  to  that  portion   of  the 


<§  2(iG]         P^'iLiNc  AND  Publication  of  Ratios.  473 

answer  ])leadin<»-  estoppel,  and  in  sustaining  the  objection 
of  })laintiff's  offering  to  }>rove  that  tlie  letter  and  spirit 
of  tlie  Interstate  Commeree  Act,  re^iilatin.i^  interstate 
rates,  could  be  side-stepped  and  avoided  l)y  pleading 
estopj)el  as  in  counterclaim  or  set-otT,  and  in  ])rincii)le 
we  can  see  no  dilference  in  the  ultimate  eifeet. " 

§  266.  Penalty  for  Making  Erroneous  Quotation  of 
Rate  When  Shipper  is  Damaged  Thereby.  Tlie  Inirden 
of  placing  upon  a  shipj^er  the  duty  of  ascertaining  for 
himself  at  his  |)eril,  the  scheduled  rate,  and  to  suffer 
the  financial  consequences  if,  relying  upon  the  carrier, 
the  agent  should  erroneously  quote  a  lower  rate  to  him, 
presented  a  situation  that  seemed  irremediable;  for,  if 
redress  were  allowed  the  shipper  for  an  erroneous  quo- 
tation of  a  rate,  it  would  open  a  way  for  the  allowance 
of  secret  rebates  in  such  a  manner  as  to  be  practical ly 
not  provable  in  criminal  proceedings.  On  the  other 
liand,  many  shippers,  owing  to  inexperience,  and  the 
complexity  and  voluminousness  of  railroad  tariffs,  are 
unable  to  determine  and  ascertain  a  rate  covering  parti- 
cular shipments.  But  a  carirer's  agent,  skilled  and  ex- 
perienced in  the  business,  should  be  able  to  know  the 
scheduled  rate. 

For  the  ])urpose  of  compelling  carriers  to  exercise 
greater  care  in  the  quotation  of  rates,  the  amendment  of 
1910  to  Section  6  was  passed. "^     This  amendment  pro- 

66.  "Upon  first  thought,  it  that  he  can  obtain  from  the  agent 
shocks  one's  sense  of  fairness  to  of  the  carrier  negligently,  has  no 
know  that  the  requirements  of  the  remedy  against  the  carrier  to  en- 
law  are  such  that  the  shipper,  force  his  contract,  when  he  has 
who,  although  charged  by  the  law  been  given  an  incorrect  rate  by  the 
with  knowledge  of  the  filed  and  agent  of  a  carrier,  based  upon 
published  rates,  it  is  known  in  which  he  has  made  contracts  and 
most  instances,  has  no  knowledge  suffers  damages  thereby.  But 
of  the  rates  prescribed  by  the  filed  Congress,  no  doubt,  considered 
and  published  tariffs,  and  because  that  it  was  better  that  the  few 
of  his  lack  of  experience  in  such  cases  of  injustice  that  might  arise 
matters,  is  unable  to  determine  from  this  source  had  better  oc- 
from  such  schedules  the  freight  cur  than  that  the  opportunity  for 
rate  in  any  given  case,  and  who.  evading  the  law  and  permitting 
therefore,  is  in  a  large  measure  rebating  and  favoritism  in  rates 
dependent    upon    the    information  under  the  plea  of  mistakes  of  the 


474  Duties  to  Interstate  Shippers.  [§  266 

vides  that  "If  any  common  carrier  subject  to  the  pro- 
visions of  this  Act,  after  written  request  made  upon  the 
agent  of  such  carrier  hereinafter  in  this  section  referred 
to,  by  any  person  or  company  for  a  written  statement 
of  the  rate  or  charge  applicable  to  a  described  ship- 
ment between  stated  places  under  the  schedules  or 
tariffs  to  which  such  carrier  is  a  party,  shall  refuse  or 
omit  to  give  such  written  statement  within  a  reasonable 
time,  or  shall  misstate  in  writing  the  applicable  rate,  and 
if  the  person  or  company  making  such  request  suffers 
damage  in  consequence  of  such  refusal  or  omission  or 
in  consequence  of  the  misstatement  of  the  rate,  either 
through  making  the  shipment  over  a  line  or  route  for 
which  •  the  proper  rate  is  higher  than  the  rate  over 
another  available  line  or  route,  or  through  entering  into 
any  sale  or  other  contract  whereunder  such  person  or 
company  obligates  himself  or  itself  to  make  such  ship- 
ment of  freight  at  his  or  its  cost,  then  the  said  carrier 
shall  be  liable  to  a  penalty  of  two  hundred  and  fifty  dol- 
lars, which  shall  accure  to  the  United  States  and  may  be 
recovered  in  a  civil  action  brought  by  the  United  States. 
It  shall  be  the  duty  of  every  carrier  by  railroad  to  keep 
at  all  times  conspicuously  posted  in  every  station  where 
freight  is  received  for  transportation  the  name  of  an 
agent  resident  in  the  city,  village,  or  town  where  such 
station  is  located,  to  whom  application  may  be  made  for 
the  information  by  this  section  required  to  be  furnished 
on  written  request;  and  in  case  any  carrier  shall  fail 
at  any  time  to  have  such  name  so  posted  in  any  station, 
it  shall  be  sufficient  to  address  such  request  in  sub- 
stantially the  following  form:  'The  Station  Agent  of  the 

Company  at   Station, '  together  with 

the  name  of  the  proper  post  office,  inserting  the  name 
of  the  carrier  company  and  of  the  station  in  the  blanks, 
and  to  serve  the  same  by  depositing  the  request  so 
addressed,  with  postage  thereon  prepaid,  or  any  post 
office." 

agents,  a  different  rule  would  af-      38  L.  R.  A.   (N.  S.)   351,  120  Pac. 
ford,  should  obtain."    Atchison,  f .       987. 
&  S.  F.  R.  Co.  V.  Bell,  31  Okla.  238, 


§  268J         Filing  and  Pfulication  of  Kates.  475 

§  267.  In  Actions  to  Collect  Scheduled  Rates  Coun- 
terclaims for  Damages  to  Goods  Prohibited,  livery  de- 
vice and  sul)terfuge  wliicli  in  any  manner  mi^lil  per- 
mit any  discrimination  between  shippers,  is  i)r(iliil)itod. 
The  purpose  of  Congress  in  the  ado) »t ion  of  the  Inter- 
state Commerce  Act  was  to  eul  up,  by  the  roots,  every 
form  of  disci-imiiu\tion,  favoritism  and  inetiuality."^  Car- 
riers cannot,  tiierefore,  accept  any  compensation  other 
than  cash  for  interstate  transportation.'"*  Applying 
these  rules  in  actions  for  the  collection  of  fi'eight 
charges,  the  courts  have  held  tluit  a  shi})per  cannot 
refuse  to  pay  the  schedule  rates  for  transportation  be- 
cause of  a  claim  for  damages  to  the  goods  shipped.  In 
view  of  the  purpose  and  spirit  of  the  act,  a  counter- 
claim of  such  a  nature  in  an  action  to  enforce  the  pay- 
ment of  freight  charges,  would  i)ave  the  way  and  open 
the  door  to  an  insiduous  method  of  rel)ating.'''''  "If  the 
defendant  in  this  action  has  a  valid  claim  for  danuiges, 
both  i)arties  should  be  permitted  to  exercise  their  right 
to  compromise  the  action;  but,  if  such  com|)romise  were 
effected  in  a  transaction  involving  the  collection  of 
freight  charges,  the  court  would  be  compelled  to  super- 
vise it  with  the  utmost  care,  in  order,  as  Judge  Munger 
expresses  it,  'to  prevent  the  granting  and  receiving  of 
rebates  by  insiduous  agreement  between  the  parties.' 
So  important  is  it  that  the  collection  of  freight  charges 
sliould  be  uniform  as  to  all  shippers,  so  important  is  it 
that  it  be  above  suspicion  of  favoritism,  that  I  feel  that 
it  is  against  ]>ul)ii('  ])olicy  to  permit  a  counterclaim  of 
this  kind  to  l)e  pleaded,  and  tlio  counterclaim  will  be 
sti-icken  out."'" 

§  268.  Damages  Not  Recoverable  for  Failure  to 
Post  Rates  at  Stations.    As  the  recpiirement  of  the  stat- 

67.  LouisviUe  &  N.  R.  Co.  v.  69.  Chicago  &  N.  W.  Ry.  Co.  v. 
Rlottley,  216  U.  S.  467,  .55  L.  Ed.  WUliam  S.  Stein  Co..  233  Fed.  716; 
297,  31  Sup.  Ct.  265,  34  L.  H.  A.  Illinois  Cent.  R.  Co.  v.  W.  L. 
(N.  S.)    671.  Iloopes  &  Sons,  23:?  Fed.  135. 

68.  Chicago,  I.  &  L.  R.  Co.  v.  70.  Judge  Wade  in  Illinois  Cent. 
United  States.  219  U.  S.  486,  55  L.  R.  Co.  v.  W.  L.  Hoopcs  &  Sons. 
Ed.  305,  31  Sup.  Ct.  272.  siipni. 


476 


Duties  to  Interstate  Shippers. 


[§  268 


lite  that  tariffs  must  be  kept  posted  in  depots  and 
stations  was  intended  as  a  means  of  affording  special 
facilities  to  the  public  for  ascertaining  rates  actually  in 
force  and  not  as  a  condition  upon  which  the  legal  opera- 
tion of  a  tariff'  must  depend,  the  failure  of  a  carrier  to 
obey  all  law  in  this  respect  does  not  invalidate  the 
tariff  when  it  has  been  properly  filed  with  the  Com- 
mission." A  failure  to  post  the  tariffs  in  stations  will 
subject  the  carrier  to  the  penalties  provided  by  the 
statute;'-  but  notwithstanding  the  provisions  of  section 
8  prescribing  that  if  any  carrier  shall  do  or  omit  to  do 
any  act,  matter  or  thing  required  by  the  statute  to  be 
done,  such  carrier  shall  be  liable  in  damages  to  the 
person  injured  thereby,  a  shipper  cannot  recover  for 
loss  sustained  by  a  carrier's  failure  to  post  a  tariff  in 
accordance  with  the  requirements  of  the  act  and  the 
Commission's  regulations  thereunder,  although  the  tar- 
iff had  been  lawfully  filed  with  the  Commission.''^ 


71.  Kansas  City  Southern  R.  Co. 
V  C.  H.  Albers  Commission  Co.,  223 
U.  S.  573,  56  L.  Ed.  556,  32  Sup. 
Ct.  316;  Texas  &  P.  R.  Co.  v.  Cis- 
co Oil  Mill,  204  U.  S.  449,  51  L.  Ed. 
562,  27  Sup.  Ct.  358;  Texas  &  P. 
R.  Co.  V.  Mugg,  202  U.  S.  242,  50 
L.  Ed.  1011,  26  Sup.  Ct.  628. 

72.  Franke  Grain  Co.  v.  Illinois 
Cent.  R.  Co.,  27  I.  C.  C.  625,  in 
which  the  Commission  said:  "Sec- 
tion 6  provides  that  schedules  of 
rates  shall  be  plainly  printed  in 
large  type,  and  that  copies  for  the 
use  of  the  public  shall  be  kept  post- 
ed in  every  depot,  station,  or  of- 
fice of  such  carrier  where  passen- 
gers or  freight  respectively  are 
received  for  transportation  in  such 
form  that  they  shall  be  accessible 
to  the  public  and  can  be  conven- 
iently inspected.  This  section 
gives  the  Commission  certain  dis- 
cretion to  modify  the  provision  as 
to  posting.  Under  the  rules  of 
the  Commission,  however,  every 
carrier  must  keep  on  file,  subject 


to  public  inspection  at  stations 
where  property  is  received  for 
transportation,  its  current  rates 
from  such  stations.  Under  these 
rules  the  Soo  line  was  under  re- 
quirement to  have  on  file  at  Mil- 
waukee the  rates  here  involved. 
The  Elkins  Act  provides  that  a 
fine  of  not  less  than  $1,000  nor 
more  than  $20,000  shall  be  incur- 
red by  any  carrier  failing  to  pub- 
lish its  rates  in  the  manner  pro- 
vided above.  The  Commission  will 
request  the  prompt  prosecution  of 
carriers  who  fail  to  meet  the  above 
requirements  of  the  law.  It  will 
make  investigations  on  its  own  ac- 
count to  determine  the  state  of  tar- 
iff files  at  stations,  and  will  re- 
ceive and  act  upon  information 
from  any  person  having  knowledge 
of  such  failure." 

73.  United  States.  Franke  Grain 
Co.  V.  Illinois  Cent.  R.  Co.,  27  I. 
C.  C.  625. 

Alabama.  Northern  Alabama  R. 
Co.    V.    Wilson    Mercantile    Co.,    9 


§  268]         Filing  and  Publication  df  Rates.  477 

Formerly  the  Inteistatc  Commorfe  Commission  and 
some  courts  held  that  damages  could  be  recovered  be- 
cause of  a  failure  to  file  and  keep  open  for  public  in- 
spection at  stations  the  established  rates  even  thou<;h 
the  shipper  thereby  indirectly  received  a  quasi  rebate 
from  the  established  rate.'*  These  rulings  were,  how- 
ever, in  effect,  overruled  by  the  Supreme  Court  in  the 
case  cited  in  the  notes,'"  in  which  the  Court  said:  ''The 
Henderson  Elevator  Company,  defendant  in  error,  as 
plaintiff  below  brought  this  action  to  recover  damages 
from  the  Railroad  Company,  the  plaintiff  in  error,  be- 
cause of  a  loss  alleged  to  have  been  sustained  bv  an 
erroneous  quotation  by  the  agent  of  the  Railroad  Com- 
pany of  the  freight  rate  on  corn  shipped  in  interstate 
commerce  from  the  station  of  the  Railroad  Company  at 
Henderson,  Kentucky.  A  rate  of  10  cents  per  hundred 
pounds  was  quoted  by  the  agent  when  in  fact  the  rate 
as  fixed  by  the  published  tariff  on  file  with  the  Interstate 
Commerce  Commission  and  effective  at  the  time  was  lSy2 
cents  per  hundred  pounds.  On  the  trial  before  a  jury 
the  court  instructed  that  if  the  loss  sustained  by  the 
plaintiff  'was  occasioned  and  brought  about  by  defend- 
ant's failure  to  have  posted  or  on  file  in  its  office  in 
Henderson,  Kentucky,  its  freight  tariff  rate  in  question 
and  by  reason  of  any  erroneous  quotation  of  defendant 
of  its  freight  rate  from  and  to  the  points  in  question, 
of    which    plaintiff    complains,     .     .     .'     there     should 

Ala.   App.   269,   63    So.    34;    Louis-      Tex.  Civ.  App  igo  S   W 

ville  &  N.  R.  Co.  v.   McMullen,  5  1161. 

Ala.  App.  662,  59  So.  683.  74.     St.  Louis  Southwestern  R 

Kentucky.  LouLsville  &  N.  R.  Co.  Co.  of  Texas  v.  Lewellen  Bros    113 

V.  Allen,   152   Ky.   145,   153   S.   W.  C.   C.  A.   414,  192  Fed.   540;     Kiel 

^^^-  Woodenware  Co.  v.  Chicago    M    & 

Missouri.     Mott  Store  Co.  v.  St.  st.  P.  Ry.  18  L  C.  C    242-   Illinois 

Louis  &  S.  F.  R.  Co.,  184  Mo.  App.  Cent.  R.  Co.  v.  Henderson  Eleva 

50,  168    S.   W.   322;     Mires   v.    St.  ,_  ^      ,,„  ,^      „„!     „ 

Louis  &  S.  F.  R.  Co..  134  Mo.  App.       ['' ^'l'''  ^^^  ''''  '''  ^-  ^-  '''■' 
379,  114  S.  W.  1052.  Wabash  R.  Co.  v.  Sloop,  200  Mo. 

South    Carolina.      Southern    Ry.  ^^^'  ^^  ^-  ^-  ^^"■ 

Co.  V.  Wilmont  Oil  Mills,  105  S.  C.  ^5.     Illinois  Cent.  R.  Co.  v.  Hen- 

51,  89  S.  E.  476.  derson  Elevator  Co.,  226  U.  S.  441, 
Texas.        Wardlow    v.    Andrews,  57  L.  Ed.  290,  33  Sup.  Ct.  176. 


478  Duties  to  Inteestate  Shippers.  [<§.  268 

be  a  verdict  for  the  plaiiitii^'.  A  verdict  having  been 
rendered  for  the  plaintiff  in  accordance  with  this  in- 
struction and  the  judgment  entered  thereon  having  been 
subsequently  affirmed  by  the  Court  of  Appeals  of  Ken- 
tucky (138  Kentucky,  220),  this  writ  of  error  was  sued 
out.  It  is  to  us  clear  that  the  action  of  the  court  below 
in  affirming  the  judgment  of  the  trial  court  and  the 
reasons  upon  which  that  action  was  based  were  in  con- 
flict with  the  rulings  of  this  court  interpreting  and  ap- 
plying the  Act  to  Regulate  Commerce.  New  York  Cent. 
R."r.  v.  United  States  (No.  2),  212  U.  S.  500,  504;  Texas 
&  Pacific  R.  R.  Co.  v.  Mugg,  202  U.  S.  242;  Gulf  Rail- 
road Co.  v.  Hefiey,  158  U.  S.  98.  That  the  failure  to 
post  does  not  prevent  the  case  from  being  controlled  by 
the  settled  rule  established  by  the  cases  referred  to 
is  now  beyond  question.  Kansas  City  So.  Ry.  Co.  v. 
Albers  Comm.  Co.,  223  U.  S.  573,  594  (a)." 

§  269.  Rule  Stated  in  Foregoing  Paragraph  Illus- 
trated in  Adjudicated  Cases.  The  following  are  illus- 
trative applications  to  concrete  cases  of  the  foregoing 
rule:  a  shipper's  agent,  upon  applying  to  a  carrier  for 
the  rate  on  corn  from  a  point  in  Iowa  to  a  point  in  Wis- 
consin, was  shown  a  tariff  which  fixed  a  rate  of  14.75 
cents  per  100  pounds  upon  which  the  shipper  relied  and 
shipped  a  carload.  The  tariff  shown  him,  however,  had 
been  canceled  and  the  rate  between  the  two  points  in  the 
established  tariff  was  21.75  cents;  but  this  new  tariff  had 
not  been  posted  at  the  station  from  which  the  grain  was 
shipped.  Upon  a  complaint  for  reparation  because  of 
a  failure  to  post  the  new  rate,  a  recovery  was  denied.^" 
In  a  carrier's  action  against  a  shipper  for  a  sum  of  mon- 
ey alleged  to  be  due  it  on  account  of  undercharges  made 
by  it  to  him  in  the  shipment  of  interstate  freight,  the 
shipper  claimed  that  the  rate  established  in  the  sche- 
dules and  filed  with  the  Commission  was  not  effective 
because  not  posted  in  the  stations  as  required  by  law; 
but  the  court  held  that  the  posting  was  no  part  of  the 

76.     Franke  Grain  Co.  v.  Illinois      Cent.  R.  Co.,  27  I.  C.  C.  625. 


§    271  I  I^'lLIXG   AND   PUBLICATIOX    OF   RaTES.  479 

pstablislimoiit    of    tlic    inic    and    tlial    tlic    sliipitci'    was 
liahlc/^ 

§  270.  Shipper  May  Recover  Damages  for  Collec- 
tion of  Rate  in  Excess  of  that  Fixed  by  Schedule.  A 
carrier  iiia\'  not  collccl  lii-^licr  cliai'i^cs  lliaii  lliosc  prc?- 
scribed  in  the  tariffs,  for  a  carrier  fixes  its  own  rate  by 
IWni^^  tlic  i'(M|nii'('(l  sclK'dulc.  'Plie  I'atc  tlius  tiled  l)e- 
(M)ines  tlie  lawfnl  i-ate  and  must  l)e  deemed  to  be  reason- 
able unless  attacked  on  that  ground  before  tlie  Inter- 
state Commeiee  Commission.  Tlie  aeeeptanee  of  a  great- 
er or  a  less  rate  or  charge  constitutes  an  unlawful  act. 
If,  therefore,  the  carrier  exacts  more  than  the  scheduled 
rate,  the  shii)per  sustains  thereby  a  loss  which  is  the 
difference  between  the  scheduled  rate  and  the  rate  he 
was  actually  charged.  As  he  is  entitled  to  transporta- 
tion at  the  lawful  rate  as  fixed  by  the  tariff,  he  may, 
therefore,  recover  any  amount  paid  in  excess  of  the 
published  rate.^*^ 

§  271.  Nothing  but  Money  May  be  Lawfully  Re- 
ceived for  Transportation  of  Either  Passengers  or  Prop- 
erty. The  statute  declares  it  to  be  an  unjust  and  unlaw- 
ful discrimination  for  any  carrier  subject  to  the  pro- 
visions of  the  Act  to  receive  from  any  ])erson  "a  great- 
er or  less  compensation"  for  any  service  rendered  in 
the  transportation  of  property  or  persons  than  is  re- 
ceived from  any  other  person  under  like  circumstances. 
This  provision  of  the  statute  was  sui)plemented  by  the 
amendment  of  11)06  to  section  6  which  provides  that 
no  carrier  shall  receive  "a  greater  or  less  or  different 
compensation"  for  the  transportation  of  persons  or 
property.  It  follows  that  nothing  but  money  can  be  law- 
fully received  or  accepted  by  interstate  cai'riers  in  ]mx- 
nient  for  transportation,  whether  of  passengers  or  ]irop- 
ertv,  or  for  anv  service  connected  therewith. 


77.  Louisville   &   N.    R.   Co.    v.       Feintuch,    112    C.    C.    A.    12G,    191 
Allen,  152  Ky.  145,  153  S.  W.  198.       Fed.  482. 

78.  Chicago,  B.  &   Q.  R.  Co.  v. 


480  Duties  to  Interstate  Shippers.  [§  271 

A  contract,  therefore,  between  an  interstate  carrier 
and  a  passenger  injured  in  a  wreck  whereby  the  pas- 
senger releases  the  carrier  from  all  damages  on  account 
of  its  negligence,  in  consideration  of  the  issuance  of  a  pass 
to  the  passenger,  providing  for  free  transportation  for 
him  for  the  remainder  of  his  life  over  the  line  of  the 
carrier,  is  invalid  in  that  it  provides  that  the  carrier 
shall  receive  a  different  compensation  for  transportation 
in  violation  of  the  statute/"*  Similarly,  a  contract  be- 
tween a  publisher  and  an  interstate  carrier  whereby  the 
carrier  agreed  to  accept  advertisements  in  a  magazine 
in  payment  for  transportation  for  the  use  of  the  pub- 
lisher, his  employes  and  members  of  his  family,  was 
held  to  be  void.*"  "The  legislative  department,"  said 
the  Court  in  the  last  case  cited,  "intended  that  all  who 
obtained  transportation  on  interstate  lines  should  be 
treated  alike  in  the  matter  of  rates  and  that  all  who 
availed  themselves  of  the  services  of  the  railway  com- 
pany (with  certain  specified  exceptions)  should  be  on  a 
plane  of  equality.  Those  ends  cannot  he  met  otherwise 
than  by  requiring  transportation  to  be  paid  for  in  money 
which  has  a  certain  value  known  to  all  and  not  in  com- 
modities or  services  or  otherwise  than  in  money."  Con- 
tracts of  a  similar  nature  have  been  frequently  con- 
demned.^^ 

§  272.  Acceptance  of  Promissory  Notes  in  Payment 
for  Freight  Charges  Unlawful.  The  statute  prohibits 
all  carriers  from  collecting  or  receiving  a  greater  or  less 
or  different  compensation  for  transportation  or  any  serv- 
ice connected  therewith  than  the  rates,  fares  and  charg- 
es which  are  specified  in  the  tariffs  filed  with  the  Com- 
mission. Congress  intended  in  the  passage  of  the  statute 

79.  LouisvUle  &  N.  R.  Co.  v.  887;  United  States  v.  Union  Stock 
Mottley,  219  U.  S.  467,  55  L.  Ed.  Yard  &  Transit  Co.  of  Chicago,  226 
297,  31  Sup.  Ct.  265,  34  L.  R.  A.  u.  S.  286,  57  L.  Ed.  226,  33  Sup. 
(N.  S.)  671.  Ct.  83;   United  States  v.  Garbisli, 

80.  Chicago,   I.  &   L.   R.  Co.  v.  ^22   u.   S.   257,   56   L.   Ed.   190.   32 
United   States,   219   U.    S.   486,   55 
L.  Ed.  305,  31  Sup.  Ct.  272. 

81.  Fourche  River  Lumber  Co. 
V.   Bryant  Lumber  Co.,   230   U.   S.  Commission,  200  U.  S.  361,   50  L. 
316,    57   L.    Ed.    1498,   33    Sup.    Ct.  Ed.  515,  26  Sup.  Ct.  272. 


Sup.  Ct.  77;     New  York,  N.  H.  & 
H.  R.  Co.  V.  Interstate  Commerce 


§  273]         Filing  and  Publication  of  Rates.  481 

tliat  all  persons  ol)taininj^'  transportation  from  interstate 
carriers  should  be  on  a  plane  of  equality.  The  purpose  of 
the  statute  cannot  ])e  met  except  by  reciuiring  tliat  trans- 
])ortation  be  paid  for  in  money.®-  It  is,  therefore,  un- 
lawful for  a  carrier  to  receive  in  payment  for  trans- 
l)ortation  services  a  promissory  note  as  it  is  a  different 
comi)ensation  from  that  whicli  the  law  autlioi-izes, 
namely,  money. ^•'' 

§  273.  Separately  Established  Rates  must  be  Pub- 
lished in  Absence  of  Joint  Rates  over  Through  Route. 
The  statute  provides  that  if  no  joint  rate  over  a  through 
route  has  boon  established,  the  several  carriers  in  sucli 
through  route  must  file,  print  and  keep  open  to  public 
inspection,  the  separately  established  rates,  fares  and 
charges  api»lical)le  to  the  through  transportatioiL  When, 
therefore,  an  interstate  shipment  of  merchandise  passes 
from  the  point  of  origin  to  the  point  of  destination  over 
the  lines  of  two  separate  carriers,  and  a  joint  rate  over 
said  lines  has  not  been  filed  and  published  in  the  manner 
required  by  the  statute,  the  lawful  rate  to  be  applied  to 
such  a  movement  is  the  published  tariff  rate  of  the  first 
carrier  from  the  point  of  origin  to  the  point  of  connec- 
tion with  the  second  carrier  and  the  published  tariff  rate 
of  the  second  carrier  from  the  point  of  connection  with 
the  first  carrier  and  the  point  of  destination.®*  It  is 
competent,  however,  for  carriers,  if  conditions  justify, 
to  make  their  proportions  of  a  through  rate  less  than 
the  local  charges  upon  their  own  lines;  but  in  so  doing, 
they  must  publish  the  rates  in  conformity  with  the  pro- 
visions of  the  statute.  If  not  published,  the  carriers 
must  adhere  to  the  rates  established,  published  and  filed 
by  them  as  applied  not  only  to  local  but   to   through 

82.    LouisviUe    &    N.    R.    Co.    v.  83.     United     States     v.     Sunday 

Mottley,  219   U.  S.  4G7,  55  L.   Ed.  Creek  Co.,  194  Fed.  252. 

297,  31   Sup.  Ct.  265,  34  L.   R.  A.  84.     Kansas  City   Soutliern    Ry. 

(N.    S.)    671;     See    Cliicago,    I.    &  Co.    v.    C.    H.   Albers   Commission 

L.  R.  Co.  V.  United  States,  219  U.  Co.,  223  U.  S.  573,  56  L.  Ed.  556. 

S.  486,  55   L.  Ed.  305,  31   Sup.   Ct.  32  Sup.  Ct.  316;     United  States  v. 

272.  Camden  Iron  Works,  150  Fed.  214; 

1    Control    C'linii'is   :il 


482  Duties  to  Interstate  Shippers.  [§  273 

traffic. ^^  The  policy  of  the  law  is  that  every  route  and 
every  service  shall  have  a  puhlished  rate  clearly  known 
and  available  to  all  patrons  of  the  carrier. 

§  274.  When  Through  Rate  is  Made  up  of  Sum  of 
Locals,  Rates  in  Effect  on  Date  of  Shipments  Apply. 
When  through  billing  is  given  by  an  initial  carrier  to 
destination  on  the  line  of  a  connecting  carrier,  there  is 
in  existence  a  through  route  over  which  a  through  rate 
applies.  When  such  a  rate  is  made  up  of  the  sum  of  the 
locals,  the  locals  apply  as  of  the  date  of  shipment.  Any 
decrease  or  increase  made  after  the  date  of  the  shipment 
is  not  applicable  to  such  through  shipments;  for  tariffs 
cannot  be  given  a  retroactive  effect  and  be  made  to  ap- 
ply to  conditions  other  than  those  existing  on  the  date 
when  such  tariffs  became  effective. 

A  combination  through  rate  is  as  binding,  definite 
and  absolute  as  a  joint  through  rate,  and  all  the  condi- 
tions, regulations  and  privileges  obtaining  as  to  au}^ 
factor  in  such  combination  rate  or  through  shipment  at 
the  time  of  initial  shipment  upon  such  combination 
through  rate,  must  be  adhered  to  and  cannot  be  varied 
as  to  that  shipment  during  the  transit  to  its  final  desti- 
nation. A  local  or  proportional  rate  "in"  cannot  be 
absorbed,  diminished  or  affected  by  any  "out"  rate  not 
in  effect  at  the  time  when  the  traffic  moved  ujxju  such 
local  or  proportional  rate.®" 

§  275.  Departures  from  Published  Tariffs  Permitted 
in   Performance   of   Private  Duties   of   Carriers.     The 

provisions  of  the  statute  prohibiting  departures  from 
published  tariffs  are  not  binding  upon  a  railroad  com- 
pany when  it  is  acting  outside  the  performance  of  its 
duties  as  a  common  carrier.  Thus,  a  carrier  having 
entered  into  a  contract  with  a  construction  company  for 

United   States   v.    Wood,    145   Fed.  L.  Ed.  698,  28  Sup.  Ct.  439. 
405.  86.     Liberty  Mills  v.  Louisville 

85.    Chicago,  B.  &  Q.  R.  Co.  v.  &  N.  R.  Co.,  23  I.  C.  C.  182;    In  re 

United  States,  85  C.  C.  A.  194,  157  Through     Routes     and     Through 

Fed.  830,  aff'd  in  209  U.  S.  90,  52  Rates,  12  I.  C.  C.  163. 


§  276]         Filing  and  Publication  of  Rates.  483 

the  grading  of  a  new  ])raneli  line,  agreed  to  transport 
the  supplies,  eamp  and  gj-ading  outfit  and  the  employes 
of  the  construction  company  at  less  than  the  rates  and 
fares  fixed  in  the  i)u])lish('d  tariffs  of  the  carrier.  Such  a 
contract,  when  entered  into  in  good  faith  and  not  as  a 
subterfuge,  is  not  a  violation  of  the  statute  penalizing 
departures  from  the  published  schedules."  There  are 
many  special  arrangements  which  are  not  embraced  with- 
in the  railroad  company's  duty  as  a  common  carrier, 
although  their  performance  may  incidentally  involve  the 
actual  transportation  of  persons  and  things,  whose  car- 
riage in  other  circumstances  might  be  within  the  car- 
rier's  public   obligation. ^^ 


^  276.  Rates  for  Passage  of  Vehicles  on  Railroad 
Ferries  Must  be  Filed.  All  rates  of  common  carriers 
b)"  railroad  no  matter  for  what  service  performed,  are 
within  the  purview  of  Section  6.  Transportation  by 
ferries,  when  owned  by  common  carriers  by  railroad 
and  in  connection  with  railroad  operation,  is  under 
the  control  of  the  Commission. ^^  Frequently  in  addition 
to  transporting  passengers  and  freight  in  connection 
with  their  rail  lines,  carriers  use  their  ferries  for  the 
purpose  of  transporting  vehicles  and  passengers  having 
no  connection  with  their  rail  lines.  If  interstate  in 
character,  vehicular  ferry  rates  and  fares  not  made  in 
connection  with  rail  lines  must  also  be  filed  with  the 
Commission  under  the  provisions  of  Section  6."" 


87.  Santa  Fe,  P.  &  P.  R.  Co.  v.  0.  S.  W.  Ry.  Co.  v.  Voight,  176  U. 
Grant  Bros.  Const.  Co.,  228  U.   S.  S.  498,  44  L.  Ed.  560,  20  Sup.  Ct. 
177,  57  L.  Ed.  787,  33  Sup.  Ct.  474;  385;    Long  v.  Lehigh  Valley  R.  Co., 
In     re     Railroad-Telegraph     Con-  65  C.  C.  A.  354,  130  Fed.  870. 
tracts,  12  I.  C.  C.  10.  89.     Section  93,  supra. 

88.  Northern    Pac.    R.    Co.    v.  90  New  York-Jersey  City  Ferry 
Adams,   192  U.   S.   440,   48   L.   Ed.  Rates,  37  I.  C.  C.  103. 

513,  24  Sup.  Ct.  408;   Baltimore  & 


CHAPTER  XIV 

Damages   ok   Rkpakatton   for  Violations   of    Commerce 
Act —  Jurisdiction  of  Courts  and  Commission. 

Sec.  277.  Statutory  Provision  Creating  Civil  I^iability  for  Damages 
Due  to  Violation  of  Interstate  Commerce  Act 

Sec.  278.  Statutory  Authority  of  Commission  and  Courts  to  Award 
Damages  for  Violation  of  Act. 

Sec.  279.  Commission  Without  Authority  to  Award  Damages  Prior  to 
Amendment  of  1889. 

Sec.  280.  Award  of  Damages  by  Commission  for  Unlawful  Discrimina- 
tion— Former    and    Present    Rule. 

Sec.  281.  Authority  of  Commission  to  Award  Damages  Extends  Only 
to  Violations  of  Act  to  Regulate  Commerce. 

Sec.  282.  Conflicting  Provisions  Harmonized  and  Exclusiveness  of 
Remedy  before  Commission,  in  Certain  Cases.  Established. 

Sec.  283.  Courts  Without  Primary  Jurisdiction  to  Award  Damages 
for  Exaction  of  Excessive  Interstate  Rates. 

Sec.  284.  But  Actions  for  Overcharges  Exceeding  Scheduled  Rates 
may  be  Prosecuted  in  Courts  without  Previous  Determi- 
nation of  Commission. 

Sec.  285.  Suits  for  Damages  Recoverable  Under  Section  8  Cannot  be 
Prosecuted  in  State  Courts. 

Sec.  286.  Damages  Caused  by  Unjust  Discrimination,  Preliminary  Or- 
der of  Commission  Essential,  When. 

Sec.  287.  Original  Jurisdiction  of  State  Courts  to  Award  Damages 
Against  Interstate  Carriers  not  Wholly  Superseded. 

Sec.  288.  In  Actions  for  Damages  for  Violation  of  Statute  Pecuniary 
Loss  Must  be  Shown. 

Sec.  289.  Measure  of  Damages  for  Unreasonable  Rates  and  Unlawful 
Discriminations. 

Sec.  290.  Parties  Entitled  to  Damages  for  Excessive  Freight  Charges 
— Consignors  and  Consignees. 

Sec.  291.  Right  of  Shipper  to  Reparation  When  Arbitrary  Sum  is 
Added  to  Sale  Price  to  Cover  Excessive  Charges. 

Sec.  292.  Foregoing  Principle  Approved  by  Federal  Supreme  Court — 
Southern  P.  Co.  v.  Darnell-Taenzer  Lumber  Co. 

Sec.  293.  Reparation  on  Past  Shipments  not  Automatically  Awarded 
on  Finding  that  Rate  is  Excessive. 

Sec.  294.     Damages  Growing  out  of  Inadequate  Service  or  Facilities. 

Sec.  29.5.  Damages  for  Misrouting  Shipments  May  be  Awarded  by 
Commission,  When. 

Sec.  290.  Reparation  Awarded  by  Commission  for  Overcharges  a  Bar 
to  Subsequent  Action  for  Additional  Damages. 

Sec.  297.  Findings  of  Commission  on  Reasonableness  of  Rates  Inure 
to  Benefit  of  Every  Person  Paying  the  Unjust  Rate. 

(484) 


"§.  27-'^  I  Damages   under   Commerce   Act.  485 

Seo.  298.     Findings  of  Faft   Required  When  Commission  Awards  Dam 
ages  Against  a  Carrier. 

Sec.  299.  Statute  Prescribing  Findings  and  Orders  of  Commission 
Prima  Facie  1^'vidcnce  of  Facts  Therein  Stated,  Constitu- 
tional. 

Sec.  300.  Commission  May  Order  Reparation  without  Prescribing  Max- 
imum Rate  to  be  Observed  In  the  Future. 

Sec.  301.  Actions  to  Enforce  Orders  of  Commission  Awarding  Dam- 
ages may  be  Prosecuted  in  State  as  well  as  Federal  Courts. 

Sec.  302.  Complaints  for  Damages  before  Commission  must  be  Filed 
within  Two  Years. 

Sec.  303.  Assignability  of  Claims  for  Damages  under  the  Interstate 
Commerce  Act. 

Sec.  304.  Allowance  of  Attorney's  Fees  for  Services  in  Reparation 
Cases  Before  Commission  not  Permitted. 

§  277.  Statutory  Provision  Creating  Civil  Liability 
for  Damages  Due  to  Violation  of  Interstate  Commerce 
Act.  Every  eommoii  carrier  subject  to  the  })r() visions 
of  tlie  Interstate  Commerce  Act  that  shall  do,  cause  to 
be  done,  or  permit  to  be  done,  any  act,  matter  or  thing, 
]irohibited  by  the  Act  to  "Regulate  Commerce,  or  declared 
therein  to  be  unlawful,  or  shall  omit  to  do  any  act,  mat- 
ter or  thing  in  such  statute  required  to  be  done,  shall 
be  liable  to  the  person  injured  thereby  for  the  full  a- 
mount  of  damages  sustained  in  consequence  of  any  such 
violation  of  the  provisions  of  the  statute,  together  with 
a  reasonable  attorney's  fee  to  be  fixed  by  the  court,  in 
every  case  of  recovery,  which  may  be  taxed  and  collect- 
ed as  a  part  of  the  costs  in  each  case.  Such,  in  substance, 
is  the  provision  of  Section  8  of  the  Interstate  Commerce 
Act.  It  has  not  been  amended  since  its  enactment  as  a 
l)art  of  the  original  act  in  1887. 

§  278.  Statutory  Authority  of  Commission  and 
Courts  to  Award  Damages  for  Violation  of  Act.  Every 
])erson  claiming  to  he  damaged  by  any  common  carrier 
subject  to  the  statute  may  either  make  complaint  to 
the  Interstate  Commerce  Commission  or  may  bring  suit 
for  the  recovery  of  damages  for  which  a  common  car- 
rier may  be  liable  under  the  provisions  of  the  Interstate 
Commerce  Act,  in  any  district  court  of  the  United  States 
of  competent  jurisdiction;  but  such  person  shall  not 
have  the  right   to   pursue   both   of   such   remedies  and 


48G  Duties  to  Interstate  Shippers.  [§  278 

must,  in  each  case,  elect  which  one  of  the  two  methods 
he  will  pursue/ 

The  procedure  for  damages  before  the  Commission 
is  governed  by  sections  13,  14  and  16  of  the  Act.  If, 
after  a  hearing  upon  a  complaint  made  as  provided  by 
section  13,  the  Interstate  Commerce  Commission,  in  a 
proceeding  instituted  before  it,  shall  determine  that  any 
party  is  entitled  to  an  award  of  damages  under  the  pro- 
visions of  the  Act  for  a  violation  thereof,  the  Commis- 
sion is  required  to  make  an  order  directing  the  carrier 
to  pay  to  the  complainant  the  sum  to  which  he  is  en- 
titled on  or  before  a  day  named  in  the  order.  If  a  car- 
rier does  not  comply  with  an  order  for  the  payment  of 
money  within  the  time  specified  in  such  order,  the  com- 
plainant, or  any  person  for  whose  benefit  such  order  was 
made,  may  file  in  the  district  court  of  the  United  States 
for  the  district  in  which  he  resides  or  in  which  is  located 
the  principal  operating  office  of  the  carrier,  or  through 
which  the  road  of  the  carrier  runs,  or  in  any  state  court 
of  general  jurisdiction  having  jurisdiction  of  the  parties, 
a  petition  setting  forth  briefly  the  things  for  which  he 
claims  damages  and  the  order  of  the  Commission  in  the 
premises.  Such  suits  in  the  district  court  of  the  United 
States  shall  proceed  in  all  respects  like  other  civil  suits 
for  damages  except  that,  on  the  trial  of  such  suits,  the 
findings  and  orders  of  the  Commission  shall  be  prima 
facie  evidence  of  the  facts  therein  stated.  The  petition- 
er shall  not  be  liable  for  costs  in  the  district  court  nor 
for  costs  at  any  subsequent  stage  of  the  proceeding  un- 
less they  accrue  upon  his  appeal.  If  the  petitioner 
shall  finally  prevail,  he  shall  be  allowed  a  reasonable 
attorney's  fee,  to  be  taxed  and  collected  as  a  part  of 
the  costs  of  the  suit.  In  such  suits  all  parties  in  whose 
favor  the  Commission  may  have  made  an  award  for 
damages  by  a  single  order,  may  be  joined  as  plaintiffs, 
and  all  of  the  carriers  parties  to  such  order  awarding 
such  damages,  may  be  joined  as  defendants.  Such  a 
suit  may  be  maintained  by   such  joint   plaintiffs  and 

1.    Section  9  of  the  Act  to  Regu-      late  Commerce,  appendix  A,  infra. 


,  §  279]         Damages  under   Commerce   Act.  487 

against  such  joint  defendants  in  any  district  where  any- 
one of  such  joint  plaintiffs  could  maintain  such  suit 
against  any  one  of  such  joint  defendants,  and  service 
of  process  against  any  one  of  such  defendants  as  may 
not  be  found  in  the  district  where  the  suit  is  brought, 
may  be  made  in  any  district  where  such  defendant  car- 
rier has  its  principal  operating  office.  In  such  joint 
suits  the  recovery,  if  any,  may  be  by  judgment  in  favor 
of  any  one  of  such  plaintiffs  against  the  defendant  found 
to  be  liable  to  such  plaintiff. 

Every  order  of  the  Commission  awarding  damages 
may  be  served  upon  the  designated  agent  of  the  carrier 
in  the  city  of  Washington,  D.  C,  or  upon  such  other  one 
as  may  be  provided  by  law.  The  Commission  is  author- 
ized to  suspend  or  modify  its  orders  upon  such  notice 
and  in  such  manner  as  it  shall  deem  proper.^  Whenever 
an  investigation  shall  be  made  by  the  Commission,  it 
shall  be  its  duty  to  make  a  report  in  writing  in  respect 
thereto,  which  shall  state  the  conclusions  of  the  Commis- 
sion, together  with  its  decision,  order  or  requirement  in 
the  premises,  and  in  case  damages  are  awarded,  such 
report  shall  include  the  findings  of  facts  on  which  the 
award  is  made.^  Nothing  in  the  Act  to  Regulate  Com- 
merce shall  in  any  way  abridge  or  alter  the  remedies 
existing  at  common  law  or  by  statute,  but  the  provisions 
of  the  Interstate  Commerce  Act  are  in  addition  to  such 
remedies.* 

§  279,  Commission  Without  Authority  to  Award 
Damages  Prior  to  Amendment  of  1889.  Prior  to  the 
amendment  of  1889  no  provision  was  incorporated  in  the 
statute  for  enforcing  the  orders  of  the  Commission  in 
the  matter  of  reparation  for  past  damages.  When  the 
question  involved  is  one  of  reparation  for  past  damages, 
the  constitutional  right  to  a  trial  by  jury  exists  under 

2.  Section  16  of  the  Act  to  Reg-       ulate  Commerce,  Appendix  A,   in- 
ulate  Commerce,  Appendix  A,  in-      fra. 

jra.  4.     Section  22  of  the  Act  to  Reg- 

3.  Section  14  of  the  Act  to  Reg-       ulate  Commerce,  Appendix  A,  ii\- 

f7-a. 


488 


Duties  to  Interstate  Shippees. 


[§  279 


the  seventh  amendment  to  tlie  federal  constitution,  and, 
as  the  statute  made  no  provision  for  a  jury  trial  as 
originally  enacted,  the  Commission,  in  several  cases,  de- 
clined to  make  an  award  of  damages.'  But  the  amend- 
ment of  1889  contained  a  provision  giving  a  jury  trial 
in  the  federal  court  when  the  matter  involved  in  any 
order  entered  by  the  Commission  was  founded  upon  a 
controversy  requiring  a  trial  by  jury.  Since  that  time 
the  Commission  has  entertained  jurisdiction  of  claims 
for  damages  due  to  a  violation  of  tlie  statute." 

§  280.     Awards   of   Damages   by    Commission   for 
Unlawful    Discrimination — Former    and    Present    Rule. 

Notwithstanding  the  acknowledged  powers  of  the  Com- 
mission under  the  Act  to  Regulate  Commerce  as  amend- 


5.  Riddle,  Dean  &  Co.  v.  New 
York,  L.  E.  &  W.  R.  Co.,  1  I.  C.  C. 
594;  Heck  v.  East  Tennessee,  V. 
&  G.  Ry.  Co.,  1  I.  C.  C.  495. 

6.  St.  Louis  Blast  Furnace  Co. 
V.  Virginian  Ry.  Co.,  21  I.  C.  C. 
215;  Parfrey  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  20  I.  C.  C.  104;  Stein- 
feld  &  Co.  V.  Illinois  Cent.  R.  Co., 
20  I.  C.  C.  12;  Texas  Grain  &  Ele- 
vator Co.  V.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  18  I.  C.  C.  580;  Stacy 
Mercantile  Co.  v.  Minneapolis,  St. 
P.  &  S.  S.  M.  Ry.  Co.,  18  I.  C.  C. 
550;  De  Bary  &  Co.  v.  Louisiana 
W.  R.  Co.,  18  I.  C.  C.  527;  Maris 
V.  Southern  P.  Co.,  18  I.  C.  C. 
301;  Delray  Salt  Co.  v.  Pennsyl- 
vania R.  Co.,  18  I.  C.  C.  259; 
American  Creosote  Works  v.  Ill- 
inois Cent  R.  Co.,  18  I.  C.  C.  212; 
Kindleton  v.  Southern  P.  Co.,  17 
I  C.  C.  251;  Beekman  Lumber  Co. 
V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  10 
I.  C.  C.  528;  Carstens  Packing  Co. 
V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  16 
I.  C.  C.  469;  Sunderland  Bros.  Co. 
V.  Pere  Marquette  R.  Co.,  16  I. 
C.  C.  450;  Wells-Higman  Co.  v. 
Grand  Rapids  &  I.  Ry.  Co.,  16  I. 


C.  C.  339;  Gilchrist  v.  Lake  Erie 
&  N.  R.  Co.,  16  I.  C.  C.  318;  Allen 
&  Co.  V.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  16  I.  C.  C.  293;  Diehl  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  16  I. 
C.  C.  190;  Hardenberg,  Dolson  Ji 
Gray  v.  Northern  P.  Ry.  Co.,  14 
I.  C.  C.  579;  Carstens  Packing  Co. 
V.  Northern  P.  Ry.  Co.,  14  I.  C.  C. 
577;  Sylvester  v.  Pennsylvania  R. 
Co.,  14  I.  C.  C.  573;  Wilson  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  14  I.  C. 
C.  549;  McCaull-Dinsmore  Co.  v. 
Chicago  G.  W.  Ry.  Co.,  14  I.  C.  C. 
527;  Slimmer  &  Thomas  v.  Chica- 
go, St.  P.,  M.  &  O.  Ry.  Co.,  14  I. 
C.  C.  525;  Gamble-Robinson  Com. 
Co.  V.  Northern  P.  Ry.  Co.,  14  I. 
C  C.  523;  California  Commercial 
Ass'n  V.  Wells,  Fargo  &  Co.,  14  I. 
C.  C.  422;  Flint  &  Walling  Mfg. 
Co.  V.  Lake  Shore  &  M.  S.  Ry.  Co.. 
14  L  C.  C.  336;  Nicola,  Stone  & 
Myers  Co.  v.  Louisville  &  N.  R. 
Co.,  14  I.  C.  199;  Erie  Preserving 
Co.  v.  Lake  Shore  &  M.  S.  Ry., 
14  I.  C.  C.  118;  Laning-Harris  Coal 
&  Grain  Co.  v.  Missouri  P.  Ry.  Co., 
13  I.  C.  C.  154;  Poor  Grain  Co.  v. 
Chicago,  B.  &  Q.   R.  Co.,   12  I.  C. 


§  280 J  Damages   unjjek   Commerce    Act.  48*J 

ed  in  1906,  the  Conmiission  held  in  1909'  that  damages 
arising  out  of  unlawful  discriminations  ascertained  and 
found  by  the  Commission  to  liave  been  practiced  by  an 
interstate  carrier,  were  cognizable  only  in  the  courts, 
and  that  the  jurisdiction  of  the  Commission  extended 
only  to  rate  or  transportation  damages,  that  is,  such 
damages  as  grow  out  of  the  collection  by  cairiers  of 
excessive  rates.  Shortly  after  the  Commission  made 
its  report  in  the  Joynes  case,  a  federal  circuit  court 
dismissed  an  action  for  damages  alleged  to  have  been 
sustained  by  a  shipper  on  account  of  unlawful  dis- 
crimination in  the  distribution  of  coal  cars  on  the  ground 
that  the  Commission  alone  could  primarily  entertain 
a  claim  of  that  nature."  When  this  decision  was  hand- 
ed down,  the  Commission  then  reluctantly  overruled 
its  former  decision  and  held  that  its  power  to  award 
damages  under  section  9  of  the  act  included  ''general" 
damages  as  well  as  "rate"  damages  due  to  a  violation 
of  any  of  the  provisions  of  the  Act.^ 

The  power  of  the  Commission  to  award  damages 
for  unlawful  discriminations  in  violation  of  the  Inter- 
state Commerce  Act  has  since  been  affirmed  by  the 
United  States  Supreme  Court,'"  and  has  been  exercised 

C.  418;  American  Grass  Twine  Co.  Co..  20  I.  C.  C.  52;    Jacoby  &  Co 

V.  Chicago,  St.  P.  M.  &  O.  Ry.  Co.,  v.  Pennsylvania  R.'  Co..  19  I    C   C 

12  I.  C.  C.   141;     Frederick   Brick  392;    Hillsdale  Coal  &  Coke  Co    v 

Works  V.  Northern  C.  Ry.  Co.,  12  Pennsylvania   R.   Co.,   19   I.   c    C 

I    C.  C.  13;    MacLoon  v.  Chicago  355 

&  N.  W.  Ry.  Co.    5  I.  C.  C.  84.  jo.     Pennsylvania  R.  Co.  v.  Son- 

Co     7  l"Tr  ;-,f  ^""^^^^""^"    ^-  -an  Shaft  Coal  Co.,  242  U.  S.  120. 

Co     7     .  C    C.361.  61    L.    Ed.    188,    37    Sup.    Ct.    46; 

8.  Mornsdale  Coal  Co.  v.  Penn-  Pennsylvania  R.  Co  v  W  F  Ta 
sylvania  R.  Co  176  Fed.  748,  in  ,,,,  ^  ^^^  ^42  U.  S.  89,  01  L.'  Ed. 
which  the  court  cited:     Baltimore  ifir    07  c!„„    r,.    .„      ^ 

&  O.  R.  Co.  V.  United  States  ex  rel.  r  ^'  ''  f  ^^  ^*;  ^S:    Pennsylvania 

Pitcairn  Coal  Co..  215  U.  S.  481.  54  ^:,''';   l   ^"y^^!"   ^«^>   ^"°-   ^0- 

L   Ed.  292.  30  Sup.  Ct.  164;    Texas  f  ^   ^'^   ^-   ''''   ''   ^-   ^^-   ^67.   35 

&  P.  R.  Co.  V.  Abilene  Cotton  Oil  ^"P"  ^*-  ■^^^'    ^^orrisdale  Coal  Co.  • 

Co.,  204  U.  S.  426,  51  L.  Ed.  553,  27  ^    Pennsylvania  R.  Co..  230  U.  S. 

Sup.  Ct.  350,  9  Ann.  Cas.  1075.  ^04,   57   L.    Ed.    1494.   33    Sup.    Ct. 

9.  Hillsdale  Coal  &  Coke  Co.  v.  ^^S;  Mitchell  Coal  &  Coke  Co.  v. 
Pennsylvania  R.  Co..  23  I.  C.  186;  Pennsylvania  R.  Co.,  230  U.  S.  247, 
Rulah  Coal  Co.  v.  Pennsylvania  R.  57  L.  Ed.  1472,  33  Sup.  Ct.  916. 


490  Duties  to  Interstate  Shippees.  [§  280 

by  the  Commission  in  many  cases/'  "The  Commission 
also  had  authority  to  make  examination  and  report  up- 
on the  amount  of  damages  which  the  plaintiff  had  suf- 
fered from  the  unjust  discrimination  alleged  in  its  com- 
plaint. We  deem  the  provisions  of  the  Act  to  be  clear 
upon  this  point.  See  sections  8,  9,  13,  16.  There  is 
nothing  in  the  Act  to  suggest  that  the  damages  which 
may  thus  be  ascertained  are  only  those  arising  from 
unreasonable  or  unjustly  discriminatory  rates.  Rules 
as  to  car  distribution  that  are  unjustly  discriminatory 
are  within  the  purview  of  section  three,  and  damages 
thereby  occasioned,  as  well  as  those  due  to  the  exaction 
of  unreasonable  rates,  arise  from  the  violation  of  the 
Act  and  their  ascertainment  is  within  the  scope  of  the 
Commission's  authority."'^ 

§  281.  Authority  of  Commission  to  Award  Dam- 
ages Extends  Only  to  Violations  of  Act  to  Regulate  Com- 
merce. The  authority  of  the  Interstate  Commerce  Com- 
mission to  award  damages  extends  only  to  such  damages 
as  accrue  from  violations  of  the  Interstate  Commerce 
Act.'^    The  Commission  has  never  assumed  jurisdiction 

11.  Sloss-Sheffield  Steel  &  Iron  41  I.  C.  C.  39;  Vulcan  Coal  & 
Co.  V.  Louisville  &  N.  R.  Co.,  40  I.  Mining  Co.  v.  Illinois  Cent.  R.  Co., 
C  C.  743;  Manufacturers'  &  Met-  32  I.  C.  C.  52;  Atlas  Portland 
chants'  Ass'n  v.  Aberdeen  &  A.  R.  Cement  Co.  v.  Lehigh  Valley  R. 
Co.,  37  I.  C.  C.  350;  Spiegle  v.  Co.,  32  I.  C.  C.  487;  United  States 
Southern  Ry.  Co.,  32  I.  C.  C.  687;  v.  Union  P.  R.  Co.,  28  I.  C.  C.  518; 
Curry  &  Whyte  Co.  v.  Duluth  &  I.  Hampton  Mfg.  Co.  v.  Old  Dominion 
R.  R.  Co.,  32  I.  C.  C.  162;  Curry  S  S.  Co.,  27  I.  C.  C.  666;  Ralston 
&  Whyte  V.  Duluth  &  I.  R.  R.  Co.,  Townsite  Co.  v.  Missouri  P.  Ry. 
.30  I.  C.  C.  1;  New  Orleans  Board  Co.,  22  I.  C.  C.  354;  Kay  Co.  v. 
of  Trade  v.  Illinnois  Cent.  R.  Co.,  Denver  &  R.  G.  R.  Co.,  21  I.  C.  C. 
29  I.  C  C.  32;  Eichenberg  v.  239;  Maxwell  v.  Wichita  Falls  & 
Southern  P.  Co.,'  28  I.  C.  C.  584;  N.  W.  Ry.  Co.,  20  I.  C.  C.  197;  Han- 
Wisconsin  Lime  &  Cement  Co.  v.  ley  Milling  Co.  v.  Pennsylvania  Co., 
Cleveland,  C.  C.  &  St.  Ry.  Co.,  25  19  I.  C.  C.  475;   Memphis  Freight 

•  I.  C.  C.  366.  Bureau  v.  Kansas  City  S.  Ry.  Co., 

12.  Pennsylvania  R.  Co.  v.  17  I.  C.  C.  90;  Falls  &  Co.  v.  Chi- 
Clark  Bros.  Coal  Min.  Co.,  238  U.  cago,  R.  I.  &  P.  Ry.  Co.,  15  I.  C.  C. 
S.  456,  59  L.  Ed.  1406,  35  Sup.  Ct.  269;  Royal  Brewing  Co.  v.  Adams 
896.  Exp.  Co.,  15  I.  C.  C.  255;   General 

13.  Southwestern  Portland  Elec.  Co.  v.  New  York  Cent.  &  H. 
Cement  Co.  v.  Texas  &  P.  Ry.  Co.,  River  R.  Co.,  14  I.  C.  C.  237;   La 


§  282]         Damages  under   Commerce   Act.  491 

to  award  damages  over  loss  and  damage  claims  not 
arising  from  any  duty  imposed  upon  the  carriers  by 
the  Act  to  Regulate  Commerce,  such  as  destruction  of 
property  from  accident,  loss  by  stealing  or  fire,  etc.'* 

Under  Section  16  of  the  Act,  tlie  Conmiission  is 
authorized  to  make  an  award  of  damages  whenever,  after 
a  hearing  and  u])on  eonii)]aiiit  made,  it  shall  find  that 
the  party  complaining  is  entitled  to  an  award  of  dam- 
ages under  the  provisions  of  the  Act  ''for  a  violation 
thereof."  With  respect,  therefore,  to  the  performance 
by  carriers  for  the  shipping  public  of  their  general 
duties  as  common  carriers  other  than  those  governed 
by  the  act,  the  Commission  is  without  authority.''*  Thus, 
the  Commission's  jurisdiction  over  claims  for  damages 
does  not  extend  to  claims  arising  from  loss,  damage 
or  delay  to  shipments  in  transit,  such  claims  being  cog- 
nizable only  in  the  courts.'"  The  Commission  has  no 
authority  to  enforce  a  contract  between  two  carriers." 

§  282.  Conflicting  Provisions  Harmonized  and  Ex- 
clusiveness  of  Remedy  before  Commission,  in  Certain 
Cases,  Established.  Although  section  9  of  the  Interstate 
Commerce  Act  provides  two  methods  of  procedure  for 
the  recovery  of  damages  resulting  from  a  violation  of 
the  statute,  one  before  the  courts,  and  the  other  before 
the  Commission,  section  22  prescribes  that  nothing  in 
the  Act  shall  in  any  way  abridge  or  alter  the  remedies 
existing  at  common  law  or  by  statute.  These  and  other 
sections  of  the  Act  have  been  so  construed  in  a  series  of 
cases  by  the  national  Supreme  Court  that  the  remedies 
provided   by   section  nine  for  damages,   under  certain 

Salle  &  Bureau  C.  R.  Co.  v.  Chi-  Pennsylvania  Co.,  19  I.  C.  C.  475; 

cago  &  N.  W.  Ry.  Co.,  13  I.  C.  C.  Duncan  v.  Atchison,  T.  &  S.  F.  Ry. 

610;   Macbride  Coal  &  Coke  Co.  v.  Co.,  6  I.  C.  C.  85. 

Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  13  15.    Blume  &  Co.  v.  Wells,  Fargo 

I    C.  C.  571;  Haines  v.  Chicago,  R.  &  Co.,  15  I.  C.  C.  53. 

I    &  P.  Ry.  Co.,  13  I.  C.  C.  214;  16.    Atlas  Portland  Cement  Co.  v. 

Shiel  &  Co.  V.  Illinois  Cent.  R.  Co..  Lehigh  Valley  R.  Co..  32  I.  C.  C. 

12  I  .C.  C.  10;   Railroad  Coramis-  487. 

sion  of  Florida  v.  Savannah,  F.  &  17.    Laona  &  N.  R.  Co.  v.  Min- 

N.  Ry.  Co.,  5  I.  C.  C.  13.  neapolis,    St.    P.    &    S.    S.    M.    Ry. 

14.    Carstens     Packing     Co.     v.  Co.,  24  I.  C.  C.  639. 


492  Duties  to  Interstate  Shippers.  [§  282 

conditions  hereinafter  discussed,  are  not  concurrent. 
On  the  contrary,  actions  for  damages  in  certain  cases 
may  not  be  instituted  in  the  courts  without  a  prior  pro- 
ceeding and  finding  by  the  Interstate  Commerce  Com- 
mission.^^ The  adjudication  giving  the  Interstate  Com- 
merce Commission  exclusive  preliminary  jurisdiction  in 
certain  actions  for  damages  was  first  established  by 
the  Supreme  Court  in  1907  and  has  been  adhered  to  since 
that  time.  The  principles  determining  when  the  juris- 
diction of  the  Commission  is  exclusive  are  discussed  in 
the  succeeding  paragraphs. 

§  283.  Courts  Without  Primary  Jurisdiction  to 
Award  Damages  for  Exaction  of  Excessive  Interstate 
Rates.  To  prevent  unjust  discriminations  and  prefer- 
ences between  shi^Dpers,  the  Interstate  Commerce  Act 
requires  all  interstate  carriers  to  file  schedules  of  their 
rates,  fares  and  charges  for  the  transportation  of  pas- 
sengers and  property  with  the  Interstate  Commerce  Com- 
mission, and  no  carrier  may  collect  or  receive  a  greater 
or  less  or  different  compensation  for  such  transportation 

18.    Pennsylvania  R.  Co.  v.  Son-  vania  R.  Co.,  230  U.  S.  304,  57  L. 

man  Shaft  Coal  Co.,  242  U.  S.  120,  Ed.  494,  33  Sup.  Ct.  938;  Mitchell 

61    L.    Ed.    188,    37    Sup.    Ct.    46;  Coal  &  Coke  Co.  v.  Pennsylvania  R. 

Loomis   V.   Lehigh   Valley  R.    Co.,  Co.,  230  U.  S.  247,  57  L.  Ed.  1472, 

240  U.  S.  43,  60  L.  Ed.  517,  36  Sup.  33  Sup.  Ct.  916;    Pennsylvania  R. 

Ct.  228;  Mills  v.  Lehigh  Valley  R.  Co.  v.  International  Coal  Min.  Co., 

Co.,  238  U.  S.  473,  59  L.  Ed.  1414,  230  U.   S.  184,  57  L.   Ed.  1446,  33 

35  Sup.  Ct.  888;    Pennsylvania  R.  Sup.  Ct.  893,  Ann.  Cas.  1915A  315; 

Co.  v.  Clark  Bros.  Coal  Min.  Co.,  United  States  v.  Pacific  &  A.  Ry. 

238  U.  S.   456,  59  L.  Ed.  1406,  35  &  Nav.  Co.,  228  U.  S.  87,  57  L.  Ed. 

Sup.  Ct.  896;   Illinois  Cent.  R.  Co.  742,  33  Sup.  Ct.  443;   Kansas  City 

V.  Mulberry  Hill  Coal  Co.,  238  U.  Southern   R.   Co.   v.   C.    H.  Albers 

S.  275,  59  L.  Ed.  1306,  35  Sup.  Ct.  Commission  Co.,  223  U.  S.  573,  56 

760;   Pennsylvania  R.  Co.  v.  Puri-  L.  Ed.  556,  32   Sup.   Ct.   316;    Gal 

tan  Coal  Min.  Co.,  237  U.  S.  121,  59  veston,  H.  &  S.  A.  R.  Co.  v.  Wal 

L.  Ed.  807,  25  Sup.  Ct.  484;  Texas  lace,  223  U.  S.  481,  56  L.  Ed.  519 

&  P.   R.   Co.   v.   American   Tie   &  32  Sup.  Ct.  205;  Louisville  &  N.  R 

Timber  Co.,  234  U.  S.  138,  58  L.  Ed.  Co.   v.    F.   W.   Cook   Brewing   Co. 

1255,  34   Sup.  Ct.   885;    Minnesota  223  U.  S.  70,  56  L.  Ed.  355,  32  Sup 

Rate  Cases,  230  U.  S.  352,  57  L.  Ed.  Ct.  189;   Baltimore  &  O.  R.  Co.  v 

1511,  33  Sup.  Ct.  729,  48  L.  R.  A.  United  States  ex  rel.  Pitcairn  Coal 

(N.  S.)   1151,  Ann.  Cas.  1916A  18;  Co.,  215  U.  S.  481,  54  L.  Ed.  292, 

Morrisdale    Coal    Co.    v.    Pennsyl-  30   Sup.  Ct.   164;    Interstate  Com- 


§  288]         Damages   under   Commerce   Act.  493 

than  is  spccilicd  in  llic  tariffs  so  (ilod.'''  When  such 
rates  have  been  duly  filed  and  publislied  as  required  by 
law,  they  cannot  be  clianged  by  a  carrier  witliout  the 
filing  and  publication  of  a  new  rate  and  charge.  Such 
published  rates,  fares  and  charges  are  presumed  to  be 
reasonable  until  set  aside  by  the  Interstate  Commerce 
Commission  upon  a  complaint  and  hearing. 

The  power  given  under  section  eight  of  the  Act  to 
the  Commission  to  award  damages  for  exaction  of  un- 
reasonable rates  is  complementary  to  the  ]K)wer  to  de- 
termine tlie  reasonableness  of  the  scheduled  rates.  The 
jurisdiction  of  the  Commission  over  these  two  subject 
matters  is  exclusive.^"  A  shipper  cannot,  therefore, 
prosecute  an  action  in  either  the  state  or  the  federal 
courts  for  damages  on  account  of  the  unreasonableness 
or  the  excessiveness  of  a  scheduled  rate  or  charge  with- 
out a  previous  finding  and  order  by  the  Interstate  Com- 
merce Commission.^'  If  the  courts  were  permitted  to 
award  damages  for  excessive  rates  and  charges  without 
a  preliminary  order  of  the  Commission,  the  question 
as  to  what  would  constitute  a  reasonable  rate  would 
vary  according  to  the  different  judgments  of  different 
juries  in  the  various  courts.  The  uniformity  of  rates 
for  similar  services  would  thus  be  destroyed;  for  in 
ascertaining  the  damage  due  to  a  shipjDer  from  the 
collection  of  an  overcharge,  the  court  would  be  compelled 
to  determine  what  would  constitute  a  reasonable  rate 
as  the  measure  of  damages  is  the  difiference  between 
the  rate  charged  and  the  rate  found  to  be  reasonable. 

merce  Commission  v.  Chicago  &  A.  21.    Western  &  A.  R  Co  v   White 

R.  Co.,  215  U.  S.  479,  54  L.  Ed.  291,  Provision  Co..  142  Ga.  240.  82  S.  E. 

30  Sup.  Ct.  163.  044;  Robinson  v.  Baltimore  &  O.  R 

19.  Section  250.  supra.  ^o.,  64  W.  Va.  406,  63  S.  E    323 

20.  Morrisdale  Coal  Co.  v.  Penn-  o*  ^^  ^     , 

1        •      n     r^        oor,    TT     o     oA^  ^^^'®  courts  have  no  authority 

sylvania    R.    Co.,    230    U.    S.    304, 

57  L.   Ed.   1494,   33    Sup.   Ct.   938;  "''^''     ""'^^^^^^     ^^*^^     primarily 

United  States  v.  Pacific  &  A.  Ry.  ^«°^«    ^'*^^*°    ^^^    jurisdiction    of 

&  Nav.  Co.,  228  U.  S.  87,  57  L.  Ed.  t^^    Interstate    Commerce     Com- 

742,  33  Sup.  Ct.  443;    Texas  &  P.  mission.    Cleveland  &  W.  Coal  Co. 

R.  Co.  V.  Abilene  Cotton  Oil  Co.,  v.   Pennsylvania   Coal  Co.,  

204  U.  S.  42G,  51  L.  Ed.  553,  27  Sup.  Ohio  ,  119  N.  E.  367. 

Ct.  350,  9  Ann.  Cas.  1075. 


494  Duties  to  Interstate  Shippers.  [§  283 

The  right  of  an  individual  to  maintain  an  action 
in  the  courts  to  obtain  damages  for  the  violation  of  the 
•Interstate  Commerce  Act  as  conferred  by  Section  9  must 
be  confined  to  the  redress  of  such  wrongs  as  can  be 
remedied  by  the  courts  without  previous  action  by  the 
Commission  and  it  has  not  therefore  implied  the  power 
in  the  courts  to  primarily  entertain  complaints  for  the 
award  of  damages  to  individuals  because  of  the  un- 
reasonableness of  rates  and  charges."  Thus,  in  the  case 
last  cited,  a  shipper  brought  a  suit  in  a  state  court 
against  a  carrier  for  damages  on  the  ground  that  the 
rate  charged  for  the  shipment  of  cotton  seed  from  a 
point  in  Louisiana  to  a  point  in  Texas  was  unjust  and 
unreasonable.  The  state  court  awarded  judgment  be- 
cause the  rate  was  excessive  notwithstanding  the  fact 
that  the  charges  collected  were  in  conformity  with  the 
rate  schedules  on  file  with  the  Interstate  Commerce  Com- 
mission. The  court  held  that  a  shipper  had  a  common 
law  right  to  sue  and  recover  freight  charges  in  excess 
of  a  reasonable  compensation.  But  on  writ  of  error  to 
the  United  States  Supreme  Court,  the  case  was  reversed 
in  an  opinion  holding  that  a  shipper  seeking  damages 
predicated  upon  the  unreasonableness  of  a  scheduled 
interstate  rate,  must,  under  the  Act  to  Regulate  Com- 
merce, primarily  invoke  redress  through  the  Interstate 
Commerce  Commission. 

§  284.  But  Actions  for  Overcharges  Exceeding 
Scheduled  Rates  may  be  Prosecuted  in  Courts  without 
Previous  Determination  of  Commission.  When  a  car- 
rier charges  more  than,  or  otherwise  departs  from,  the 
published  rate  on  file  with  the  Interstate  Commerce 
Commission,  the  courts  may  determine  whether  the  pub- 
lished rate  or  more  than  the  published  rate  has  been 
collected  in  a  given  case  without  a  previous  determi- 
nation by  the  Commission.^^    If  a  carrier  departs  from 

22.  Texas  &  P.  R.  Co.  v.  Abilene  23.  Pennsylvania  R.  Co.  v.  In- 
Cotton  Oil  Co.,  204  U.  S.  426,  51  ternational  Coal  Min.  Co.,  230  U. 
L.  Ed.  553,  27  Sup.  Ct.  350,  9  Ann.  S.  184,  57  L.  Ed.  1446,  33  Sup.  Ct. 
Cas.  1075.  893,  Ann.  Cas.  1915A  315;   Gimbel 


§  284]         Damages  under   Commerce   Act.  495 

a  published  tariff,  ilic  iiijuicd  i^arty  may  sue  without 
previous  action  h>  llic  ( 'ommission,  because  the  courts 
can  api)ly  the  law  ])r<)liihitin,i^  a  departure  from  the  tariff 
to  the  facts  of  a  particular  case.'*  An  action,  therefore, 
may  be  prosecuted  in  the  courts  to  recover  amounts 
])aid  for  interstate  transportation  in  excess  of  the  sche- 
duled rates  and  charges  on  file  with  the  Commission.'''' 
The  line  of  distinction  showing  when  a  shipper 
may  sue  in  the  courts  for  overcharges  without  previous 
action  by  the  Commission,  and  when  he  cannot,  was 
thus  well  stated  by  the  Circuit  Court  of  Appeals:^®  ''Un- 
der what  circumstances,  if  at  all,  the  option  apparently 
otfered  by  section  9  may  be  available,  we  will  endeavor 
to  determine  from  a  consideration  of  the  nature  of  the 
Interstate  Commerce  Act.  Varying  secret  rates,  unjust 
discriminations,  undue  preferences,  were  the  evils  to 
l)e  cured.  Publicity,  uniformity,  and  equality,  with 
respect  to  all  matters  of  rates  and  practices,  were  the 
remedies.  And  a  new  means  was  created  for  administer- 
ing the  remedies,  namely,  the  commission  with  its  super- 
visory and  regulatory  powers.  The  commission  was 
added  as  an  instrumentality  of  the  administrative  (ex- 
ecutive) department  of  government,  and  two  distinct 
classes  of  powers  were  conferred  upon  it,  quasi  legis- 
lative and  quasi  judicial.  When  shippers  before  the 
commission  challenge  a  published  rate  as  unjust  and 
demand  the  fixing  of  a  just  rate,  and  fail  to  make  a# claim 
or  admit  they  have  no  claim  for  damages  accrued,  they 
present  nothing  but  matter  that  is  legislative  in  its 
nature.  Congress  directly  and  in  the  first  instance  might 
have  inquired  into  the  character  and  value  of  the  partic- 
ular transportation  service  now  under  investigation 
by  the  commission  and  have  named  the  rate  therefor  in 
a   statute.      But,    with    the   increasing   complexities   of 

Bros.,    Inc.    v.    Barrett,    215    Fed.  25.    Geraty     v.     Atlantic     Coast 

1004;    National    Pole   Co.    v.    Chi-  Line  R.  Co.,  211  Fed.  227. 

cago  &  N.  W.  R.  Co.,  127  C.  C.  A.  26.    National    Pole    Co.    v.    Chi- 

561,  211  Fed.  65.  cago  &  N.  W.  R.  Co  ,  127  C.  C.  A. 

24.    MitcheU  Coal  &  Coke  Co.  v.  561,  211  Fed.  65. 
Pennsylvania  R.  Co.,  230  U.  S.  247, 
57  L.  Ed.  1472,  .33  Sup.  Ct.  916. 


496  Duties  to  Intekstate  Shippeks.  [<^  284 

liumau  activities,  it  was  impossible  to  cover  the  details 
of  ratemaking  (and  the  same  is  true  of  many  other  sub- 
jects) by  specific  statutes;  and  so  the  board  or  commis- 
sion form  of  legislation  was  used.  That  is,  Congress 
declared  the  public  policy  and  fixed  the  legal  principles 
that  were  to  control,  and  charged  an  administrative  body 
with  the  duty  of  ascertaining  within  particular  fields 
from  time  to  time  the  facts  on  which  tlie  legal  principles 
established  by  Congress  would  be  brought  into  play. 
Such  action  by  the  commission,  to  be  constitutional, 
cannot  of  course  be  legislation,  for  the  whole  of  the 
lawmaking  power  of  the  United  States,  except  the  ad- 
visory and  veto  power  of  the  President,  is  in  Congress. 
But  since  the  Congressional  prohibition  of  unjust  rates 
cannot,  by  the  terms  of  the  act,  be  effective  against  a 
particular  published  rate,  although  unjust,  until  the 
commission  has  investigated  the  service  in  question  and 
has  established  the  standard  of  justness  for  all  shippers 
who  use  that  service,  the  action  of  the  commission  in 
reguition  of  rates  is  quasi  legislative — it  converts  the 
actual  legislation  from  a  static  into  a  dynamic  condi- 
tion. When  shippers  before  the  commission  challenge 
a  published  rate  as  unjust  and  demand  the  fixing  of 
a  just  rate,  and  additionally  ask  a  reparation  order  for 
damages  measured  by  the  excess  of  the  published  rate 
over  the  declared  just  rate  as  applied  to  their  shipments, 
their  additional  or  secondary  demand,  considered  by  it- 
self, presents  nothing  but  matter  that  is  judicial  in  its 
nature.  There  is  a  controversy,  between  parties,  in 
which  none  but  the  parties  are  interested,  to  be  settled 
by  hearing  the  evidence,  finding  the  facts  and  applying 
the  law,  and  the  settlement  to  be  binding  only  upon 
parties  and  privies.  In  such  a  controversy  the  facts  to 
be  found  from  the  evidence  are  the  facts  that  pertain 
to  the  particular  shipments  and  payments  of  the  com- 
plaining shipper,  and  the  law  to  be  applied  is  the  Inter- 
state Commerce  Act  by  virtue  of  either  its  direct  terms 
or  an  administrative,  quasi  legislative  declaration  of  the 
commission.  The  commission's  action  in  such  a  con- 
troversy, to  be  constitutional,  cannot  of  course  be  judi- 
cial, for  the  whole  of  the  judicial  power  of  the  United 


§  284J  Damages   under   Commerce  .Act.  407 

States  is  vested  in  its  eouils.  But,  wliilc  such  action  is 
of  a  judicial  nature,  in  resjx'ct  to  power  it  is  only  quasi 
judicial,  since  a  judicial  determination  of  a  controversy  is 
a  final  determination  embodied  in  a  judj^ment  or  decree 
of  a  court  and  enforceable  by  execution  or  other  writ  of 
the  court.  Turnin*i:  now  to  section  8,  that  the  'carrier 
shall  1)0  liable  to  the  i)erson  injured  for  the  full  amount 
of  damages  sustained  in  consequence  of  any  violation  of 
the  provisions  of  this  act,'  let  us  see  what  is  reciuired  to 
constitute  a  cause  of  action  thereunder.  If  a  shipper 
states  in  his  complaint  that  he  paid  12  cents  per  hun- 
dredweight on  certain  described  shipments,  that  during 
the  times  of  the  shipments  the  carrier  had  a  published 
tariff  of  10  cents  per  hundredweight  on  such  shipments, 
and  that  the  payments  exacted  of  the  shipper  were  un- 
just to  the  extent  of  2  cents  per  hundredweight,  the 
stated  facts  make  a  good  complaint,  foi-  the  statutory 
prohibition  of  unjust  rates  is  directly  effective  by  reason 
of  the  published  rate's  being  equivalent  to  a  statutory 
declaration  of  the  maximum  of  reasonable  rates.  There 
need  be  no  administrative,  quasi  legislative  determina- 
tion of  conditions  on  which  the  statutory  prohibition 
would  be  brought  into  effect.  Such  a  complaint  for 
damages  is  presentable  to  the  commission  for  its  quasi 
judicial  action.  Or,  under  section  9  the  plaintiff  ma}" 
at  once  demand  judgment  in  a  federal  District  Court. 
Pennsylvania  R.  Co.  v.  International  Coal  Co.,  230  U. 
S.  184,  33  Sup.  Ct.  893,  57  L.  Ed.  1446.  If  a  shipper 
states  in  his  complaint  that  he  paid  12  cents  per  hun- 
dredweight on  certain  shipments,  that  the  carrier's  jDub- 
lished  rate  on  such  shipments  was  12  cents  per  hundred- 
w^eight,  and  that  the  jiayments  exacted  of  the  shijiper 
were  unjust  to  the  extent  of  2  cents  per  hundredweight, 
the  stated  facts  fail  to  constitute  a  cause  of  action,  for 
the  statutory  prohibition  of  unjust  rates  cannot,  in  the 
face  of  the  presumption  attaching  to  the  carrier's  pub- 
lished rate,  be  effective  until  the  commission  has  exer- 
cised its  quasi  legislative  function  of  determining  the 
just  rate,  with  which  the  trier  of  the  damage  case  may 
compare  the  facts  respecting  the  plaintiff's  shipments 
and  the  payments  therefor  exacted  by  the  carrier.     But 

1   Coutrol   CaiViors  3- 


4-98  Duties  to  Interstate  Shippers.  ['^  284 

when  the  rate-determining-  function  has  been  fully  exer- 
cised by  the  commission  (and  the  function  is  exactly 
the  same  whether  exercised  over  a  present  or  future 
rate,  or  over  a  past  or  abandoned  rate  (Mitchell  Coal 
Co.  V.  Pennsylvania  R.  Co.,  230  U.  S.  247,  33  Sup.  Ct. 
916,  57  L.  Ed.  1472),  then  the  statutory  standard  is  as 
definite  and  specific  as  if  Congress  itself  had  fixed  the 
rate.  And  consequently  it  seems  clear  to  us  that,  since 
legislation  is  for  all  citizens  and  subjects  and  therefore 
requires  uniformity  and  equality,  while  judgments  con- 
cern only  the  i3arties  litigant  and  therefore  may  be  va- 
riant or  contradictory  without  affecting  their  nature, 
whenever  damages  are  occasioned  by  unjust  exactions 
and  the  standard  of  justness  is  definitely  fixed  in  the 
act  itself  or  in  the  quasi  legislative  determination  of 
the  commission,  an  injured  party  who  has  had  no  hand 
in  procuring  either  the  legislation  or  the  r/^/rt.sHegislation 
is  given  a  cause  of  action  by  section  8,  and  for  his  damag- 
es he  may  have  by  virtue  of  section  9  either  a  repara- 
tion order  of  the  commission  or  a  judgment  of  a  feder- 
al District  Court.  This  must  be  the  result  because,  on 
the  basis  that  all  legislative  functions  have  been  com- 
pletely and  explicitly  exercised,  there  would  be  nothing 
for  the  commission  to  do  for  an  injured  shipper  except 
to  apply  to  his  particular  facts  the  universal  law,  and 
that  can  be  done  as  well  in  court  without  disturbing  or 
obstructing  the  Act's  cardinal  purposes  of  uniformity 
and  equality  in  the  legislative  subject  matter  of  rates 
and  practices." 

§  285.  Suits  for  Damages  Recoverable  Under  Sec- 
tion 8  cannot  be  Prosecuted  in  State  Courts.  When  an 
act  creates  a  new  liability  or  gives  a  right  of  action  and 
at  the  same  time  prescribes  the  means  by  which,  or  the 
court  in  which,  the  right  is  to  be  enforced,  resort  may 
not  be  had  to  any  other  means  or  court,  than  that  pre- 
scribed.^^ As  it  is  specifically  provided  in  Section  9 
that  a  person  claiming  to  be  damaged  by  any  common 

27.    Carlisle  v.  Missouri  Pac.  Ry.      Siggins  v.  Chicago  &  N.  W.  R.  Co., 
Co.,   168   Mo.    652,   68    S.   W.    898;       153  Wis.  122,  140  N.  W.  1128. 


<§  285]         Damages  under   Commerce   Act.  499 

carrier  for  a  violation  of  the  Act  may,  at  his  election, 
make  complaint  to  the  Commission  or  bring  suit  in  a 
federal  court  of  competent  jurisdiction,  it  follows  that 
the  state  courts  have  no  jurisdiction  to  enforce  claims 
for  damages  due  to  a  violation  of  the  Interstate  Com- 
merce Act.^^  A  shipper  cannot  maintain  an  action  at 
common  law  in  a  state  court  to  recover  the  excess  of 
unjust  and  unreasonable  freight  charges  exacted  on 
interstate  shipments  when  the  rates  charged  were  those 
fixed  by  the  schedules." 

Where  a  particular  remedy  is  provided  by  law,  such 
remedy  must  be  sought  to  the  exclusion  of  all  others  in 
the  cases  contemplated  by  statute;  otherwise,  a  person 
claiming  injury  under  the  Interstate  Commerce  Act, 
instead  of  being  compelled  to  elect  which  one  of  the 
two  methods  of  procedure  provided  by  the  Act  he  will 
adopt,  will  be  afforded  a  third  alternative  not  contem- 
plated or  provided  for  in  the  statute.  This  would  be  a 
violation  of  the  express  terms  of  the  statute  whereby 
he  is  limited  to  a  choice  between  two  remedies.^'*  The 
Interstate  Commerce  Commission  and  the  federal  courts 
have  exclusive  jurisdiction  of  all  claims  for  overcharges 
on  interstate  shipments  whether  they  grow  out  of  an 

28.    United  States.  Pennsylvania  R.  A.  725,  26  Ann.  St.  Rep.  198    9 

R.  Co.  V.  Puritan   Coal   Mln.   Co.,  So.  441. 

237  U.  S.  121,  59  L.  Ed.  867,  35  Sup.  Nebraska.      Fitzgerald    v.    Fitz- 

Ct.  484;  Union  Pac.  R.  Co.  v.  Ore-  gerald    &    Mallory    Const.    Co.,    41 

gon-Washlngton  Lumber  Manufac-  Neb.  374,  59  N.  W.  838. 

turers'  Ass'n,  91  C.  C.  A.  51,  165  Pennsylvania.    Puritan  Coal  Min. 

Fed.  13;    Northern  Pac.  R.  Co.  v.  Co.    v.    Pennsylvania    R.    Co.,    237 

Pacific    Coast    Lumber    Manufac-  Pa.   420,   Ann.    Cas.    1914B   37,    85 

turers'  Ass'n,  91  C.  C.  A.  39,  165  Atl.  426. 

Fed.  1;  Sheldon  v.  Wabash  R.  Co..  jexas.     Gulf,  C    &  S    F    R    Co 

105  Fed.  785;   Van  Patten  v.  Chi-  ^    ^oore.  98  Tex.  302    4  Ann    Cas' 

cago,  M.  &  St.  P.  R.  Co.,  74  Fed.  770    83  S    W    3r'' 

981.  '            •       •       - 

California.  Olcovich  v.  Grand 
Trunk  R.  Co.  of  Canada.  20  Cal. 
App.  349,  129  Pac.  290. 

Georgia.     Western   &  A.   R.   Co.  ^^-    Robinson  v.  Baltimore  &  0. 

v.    White    Provision    Co.,    142    Ga.  ^-  Co.,  64  W.  Va.  406,  63  S.  E.  323. 

246,  82   S.   E.   644.  30.    Gulf,   C.   &   S.   F.   R.   Co.   v. 

Louisiana.      Copp    v.    Louisville  Moore,   98   Tex.   302,   4   Ann.   Cas. 

&  N.  R.  Co.,  43  La.  Ann.  511,  12  L.  770,  83  S.  W.  362. 


West  Virginia.  Robinson  v.  Bal- 
timore &  O.  R.  Co.,  64  W.  Va.  406, 
63  S.  E.  323. 


500  Duties  to  Interstate  Shippers.  [§  285 

excessive  rate  or  out  of  misrouting.^^  A  state  court  has 
no  jurisdiction  of  an  action  to  recover  damages  from 
a  railroad  company  for  charging  the  shipper  rates  in 
excess  of  those  prescribed  by  the  Interstate  Commerce 
Act.'' 

§  286.    Damages  Caused  by  Unjust  Discrimination, 
Preliminary    Order    of    Commission    Essential,    When. 

AVhenever  in  any  claim  for  damages  against  an  inter- 
state carrier  for  violating  the  Interstate  Commerce 
Act,  the  determination  thereof  involves  matters  calling 
for  the  exercise  of  the  administrative  power  and  dis- 
cretion of  the  Commission,  a  preliminary  order  by  the 
Commission  is  essential  before  the  shipper  may  proceed 
in  the  courts.^^  Thus,  when  a  shipper  is  seeking  damag- 
es because  of  a  discriminatory  rule  of  a  railroad  com- 
pany in  distributing  cars  for  interstate  shipments  during 
times  of  car  shortage,  the  question  whether  the  rule  or 
method  of  car  distribution  practiced  by  the  railroad 
company  is  unjustly  discriminatory,  is  one  which  the 
Commission  is  authorized  to  pass  upon,  and  no  action 
can  be  maintained  in  the  courts  to  recover  damages 
alleged  to  have  been  inflicted  thereby  until  the  Commis- 
sion has  made  its  finding  as  to  the  reasonableness  of  the 
rule.^*  But  if  an  action  is  based  upon  a  discriminatory 
enforcement  of  the  carrier's  own  rule  for  car  distribu- 
tion, no  administrative  question  is  involved.  Such  an 
action,  although  brought  against  an  interstate  carrier 

31.  Siggins  v.  Chicago  &  N.  W.      Ed.  1255,  34  Sup.  Ct.  885. 

R.   Co.,   153    Wis.    122,    140    N.   W.  34.    Pennsylvania  R.  Co.  v.  Clark 

1128.  Bros.    Coal    Min.    Co.,    238    U.    S. 

32.  Carlisle  v.  Missouri  Pac.  Ry.  456,  59  L.  Ed.  1406,  35  Sup.  Ct. 
Co.,  68  Mo.  652,  68  S.  W.  898.  896;   Pennsylvania  R.  Co.  v.  Puri- 

33.  Loomis  v.  Lehigh  Valley  R.  tan  Coal  Min.  Co.,  237  U.  S.  121, 
Co.,  240  U.  S.  43,  60  L.  Ed.  517,  59  L.  Ed.  867,  35  Sup.  Ct.  484; 
36  Sup.  Ct.  228;  Pennsylvania  R.  Mitchell  Coal  &  Coke  Co.  v.  Penn- 
Co.  V.  Clark  Bros.  Coal  Min.  Co.,  gylvania  R.  Co.,  230  U.  S.  247,  57 
238  U.   S.   456,   59  L.  Ed.   1406,   35  ^    ^    ^^^^^  33  g^^    ^^    g^g.   ^^j^j. 

Sup.  Ct.  896;  P"^"j°^^yJ:^^"^2^3^\^^-  more  &  O.  R.  Co.  v.  United  States 

nllTuEaVir^'^  Sup.  Ct.  484;'  ^^  '''■  P^^cairn   Coal   Co..  215    J. 

Texas  &  P.  R.  Co.  v.  American  Tie  S.  481,  54  U  Ed.  292.  30  Sup.  Ct. 

&  Lumber  Co.,  234  U.  S.  138,  58  L.  l^"*- 


§  287]  Damages   under   Commebce   Act.  501 

for  damages  arising  in  interstate  coiiinierce,  may  ])(' 
brought  in  the  eourts  witli  a  preliminary  finding  by  the 
Commission. ^'^ 

§  287.  Original  Jurisdiction  of  State  Courts  to 
Award  Damages  Against  Interstate  Carriers  not  Wholly 
Superseded.  The.  authority  granted  to  the  Interstate 
('onnnerco  Commission  and  tlie  federal  courts  to  award 
damages  against  interstate  carriers  for  violations  of 
the  Act  to  Regulate  Commerce  does  not  supersede  the 
original  jurisdiction  of  state  courts  witliout  previous 
action  of  the  Commission,  in  any  case  where  the  deci- 
sion does  not  involve  the  determination  of  matters  call- 
ing for  the  exercise  of  the  administrative  power  and 
discretion  of  the  Commission,  or  relates  to  a  subject  as 
to  which  the  jurisdiction  of  the  federal  courts  has  not 
otherwise  been  made  exclusive.^"  For  example,  a  shipper 
may  prosecute  an  action  for  darnages  against  a  carrier 
for  a  failure  to  comply  with  its  common  law  duty  of 
furnishing  cars  for  the  shipment  of  coal  even  though 
the  cars  were  to  be  used  in  conveying  coal  in  interstate 
commerce.^^ 

35.  Illinois  Cent.  R.  Co.  v.  Mul-  the  purpose  of  preventing  sych  a 
berry  Hill  Coal  Co.,  238  U.  S.  275,  result,  the  proviso  to  sec.  22  de- 
59  L.  Ed.  1306,  35  Sup.  St.  760;  clared  that  'nothing  in  this  act 
Pennsylvania  R.  Co.  v.  Puritan  contained  shall  in  any  way  abridge 
Coal  Min.  Co.,  237  U.  S.  121,  59  or  alter  the  remedies  now  existing 
L.  Ed.  867,  35  Sup.  Ct.  484.  at  common  law  or  by  statute,  but 

36.  Illinois  Cent.  R.  Co.  v.  Mul-  the  provisions  of  this  act  are  In 
berry  Hill  Coal  Co.,  238  U.  S.  275,  addition  to  such  remedies.'  That 
59  L.  Ed.  1306,  35  Sup.  Ct.  760.  proviso  was  added  at  the  end  of 

37.  Pennsylvania  R.  Co.  v.  Puri-  the  statute, — not  to  nullify  other 
tan  Coal  Min.  Co.,  237  U.  S.  121,  parts  of  the  Act,  or  to  defeat  rights 
59  L.  Ed.  867,  35  Sup.  Ct.  484,  or  remedies  given  by  preceding 
wherein  it  was  said:  "But  sees.  sections,— but  to  preserve  all 
8  and  9  standing  alone  might  have  existing  rights  which  were  not  in- 
been  construed  to  give  the  Fed-  consistent  with  those  created  by 
eral  courts  exclusive  jurisdiction  the  statute.  It  was  also  intend- 
of  all  suits  for  damages  occasiouvid  ed  to  preserve  existing  remedies, 
by  the  carrier  violating  any  of  such  as  those  by  which  a  shipper 
the  old  duties  which  were  pre-  could,  in  a  state  court,  recover 
served  and  the  new  obligations  for  damages  to  property  while  in 
which  were  imposed  by  the  Com-  .  the  hands  of  the  interstate  carrier: 
merce    Act.      And,    evidently,    for  damages  caused  by  delay  in  ship- 


502 


Duties  to  Interstate  Shippers. 


[§  288 


§  288.  In  Actions  for  Damages  for  Violation  of 
Statute  Pecuniary  Loss  Must  be  Shown.  The  only 
right  of  recovery  given  by  the  Interstate  Commerce 
Act  to  an  individual  against  a  common  carrier  is  to 
the  "person  or  persons  injured  thereby  for  the  full 
amount  of  damages  sustained  in  consequence  of  any 
such  violation  of  the  provisions  of  this  act."  It  there- 
fore follows  that  before  any  party  can  recover  under 
the  statute,  he  must  show  not  merely  the  wrong  of  the 
carrier,  but  that  the  wrong  shown  did,  in  fact,  operate 
to  his  injury.^^  The  statute  gives  a  right  of  action  for 
damages  to  the  injured  party.  By  the  use  of  these  legal 
terms,  it  is  clearly  indicated  that  the  damages  recover- 
able were  those  known  to  the  law  and  intended  as  com- 
pensation for  an  injury  sustained,  that  is,  of  pecuniary 
loss  inflicted.^® 


ment;  damages  caused  by  failure 
to  comply  with  its  common  law 
duties  and  the  like.  But  for  this 
proviso  to  sec.  22  it  might  have 
been  claimed  that,  Congress  having 
entered  the  field,  the  whole  sub- 
ject of  liability  of  carrier  to  ship- 
pers in  interstate  commerce  had 
been  withdrawn  from  the  juris- 
diction of  the  state  courts  and 
this  clause  was  added  to  indicate 
that  the  Commerce  Act,  in  giving 
rights  of  action  in  Federal  courts, 
was  not  intended  to  deprive  the 
state  courts  of  their  general  and 
concurrent  jurisdiction.  Galves- 
ton etc.,  R.  R.  v.  Wallace,  223  U. 
S.  481.  Construing,  therefore, 
sees.  8,  9  and  22  in  connection  with 
the  statute  as  a  whole,  it  appears 
that  the  Act  was  both  declara- 
tory and  creative.  It  gave  ship- 
pers new  rights,  while  at  the  same 
time  preserving  existing  cause  of 
action.  It  did  not  supersede  the 
jurisdiction  of  state  courts  in  any 
cause,  new  or  old,  where  the  de- 
cision did  not  involve  the  deter- 
mination   of    matters    calling    for 


the  exercise  of  the  administrative 
power  and  discretion  of  the  Com- 
mission; or  relate  to  a  subject  as 
to  which  the  jurisdiction  of  the 
federal  courts  had  otherwise  been 
exclusive." 

38.  Meeker  v.  Lehigh  Valley  11. 
Co.,  236  U.  S.  412,  59  L.  Ed.  644, 
35  Sup.  Ct.  328,  Ann.  Cas.  1916 
B  691;  Parsons  v.  Chicago  &  N.  W. 
Ry.  Co.,  167  U.  S.  447,  42  L.  Ed. 
231,  17  Sup.  Ct.  887;  Darnell- 
Taenzer  Lumber  Co.  v.  Southern 
Pac.  Co.,  137  C.  C.  A.  460,  221 
Fed.  890;  Lehigh  Valley  R.  Co.  v. 
American  Hay  Co.,  135  C.  C.  A. 
307,  219  Fed.  539;  Lehigh  Valley 
R.  Co.  V.  Clark,  125  C.  C.  A.  235, 
207  Fed.  717;  Knudsen-Ferguson 
Fruit  Co.  V.  Michigan  Cent.  R.  Co., 
79  C.  C.  A.  46,  148  Fed.  968;  Pub- 
lic Service  Commission  of  Mis- 
souri V.  Wabash  R.  Co.,  37  I.  C. 
C.  297;  Eagle  Ice  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  37  I.  C.  C. 
250;  Union  Tanning  Co.  v.  South- 
ern Ry.  Co.,  25  I.  C.  C.  112. 

39.  Meeker  v.  Lehigh  Valley 
R.   Co.,   236   U.   S.    412,   59   L.   Ed. 


§  289]  1)ama(;e.s  under  Commerce  Act.  503 

Neither  the  Commission  nor  the  courls  arc  justi- 
fied in  awarding  damages  for  a  viohition  of  tlie  Act  ex- 
cept on  a  basis  as  certain  and  definite  in  hiw  and  in  fact 
as  is  essential  to  the  supi)ort  of  a  final  judgment  or  de- 
cree requiring  the  payment  of  a  definite  sum  of  money 
by  one  party  to  another.'"  A  co7n))lainant  must  estaV)- 
lish  the  fact  of  his  damage  as  well  as  the  amount  of  the 
damages  he  claims/^  For  example,  if  a  complainant 
paid  charges  which  were  found  by  the  Commission  to 
be  discriminatory,  this  of  itself,  is  not  sufficient  to  award 
a  finding  of  damages." 

§  289.  Measure  of  Damages  for  Unreasonable  Rates 
and  Unlawful  Discriminations.  The  first  section  of  the 
Interstate  Commerce  Act  declares  that  all  rates  shall 
be  just  and  reasonable.  If  a  carrier  prescribes  by  its 
schedules  and  collects  a  rate  which  is  unjust  and  un- 
reasonable, it  thereby  violates  the  first  section.  Any 
person  who  has  paid  such  an  excessive  rate,  may,  by 
complaint  to  the  Commission,  upon  showing  that  the 
rate  was  unjust  and  unreasonable,  and  to  what  extent, 
obtain  an  order  for  the  payment  of  damages  in  the  event 
that  the  sum  paid  exceeded  a  just  and  reasonable  rate.*^ 

644,  35   Sup.    Ct.    328,    Ann.    Cas.  ton  OU  Co.  v.  Atchison,  T.  &  S.  F. 

1916B  691;  Chattanooga  I.  &  Mfg.  R.  Co.,  20  I.  C.  C.  43. 

Co.  V.  Louisville  &  N.   R.   Co.,   40  40.    Anadarko  Cotton  Oil  Co.  v. 

I    C.  C.  150;    Shelby ville  Business  Atchison,  T.  &  S.  F.  R.  Co.,  20  I. 

Men's  Ass'n  v.  Louisville  &  N.  R.  C.  C.  43. 

Co.,    37    L    C.     C.    675;     National  41.    New  Orleans  Board  of  Trade 

Pickle  &  Canning  Co.  v.  Chicago,  v.  Illinois  Cent.  R.  Co.,  29  I.  C.  C. 

M.  &  St.  r.  R.  Co.,  37  I.  C.  C.  403;  32. 

Axton  v.  Kanakha  &  M.  Ry.  Co.,  42.    Greenbaum    v.    Louisville   & 

37  L  C.  C.  389;    Manufacturers  &  N.  R.  Co.,  31  L  C.  C.  699. 

Merchants'  Ass'n  of  New   Albany  43.    American   Grass   Twine  Co. 

v.  Aberdeen  &  A.  R.  Co..  37  L  C.  v.  Chicago.  St.  P..  M.  &  O.  Ry.  Co., 

C.  350;    Coffeyville  Mercantile  Co.  12   I.   C.   C.   141;    McGrew   v.   Mis- 

V.  Missouri,  K.  &  T.  R.  Co.,  33  L  souri    P.    R.    Co.,    8    L   C.    C.    630; 

C.  C.  122;  Greenbaum  v.  Louisville  Cattle  Raisers'  Ass'n  v.  Fort  Worth 

&  N.  R.  Co..  31  L  C.  C.  699;  Hormel  &  D.   C.   Ry.   Co..   7  I.  C.  C.   513: 

&  Co.  V.  Chicago,  M.  &  St.  P.  R.  :\Iichigan  Box  Co.  v.  Flint  &  P.  M. 

Co.,  30  L  C.  C.  98;   New  Orleans  R.   Co.,   6    L   C.   C.   335:    Perry  v. 

Board  of  Trade  v.  Illinois  Cent.  R.  Florida,  C.  &  P.  R.  Co.,  5  I.  C.  C. 

Co.,  29  T.  C.  C.  32:   Anadarko  Cot-  97;   Lehmann.  Higginson  &  Co.  v. 


50-4  Duties  to  Interstate  Shippers.  [§  289 

Tlie  measure  of  damages,  therefore,  in  reparation  cases 
based  upon  an  unreasonable  rate,  is  the  difference  be- 
tween the  excessive  rate  actually  collected  and  the 
lower  rate  which  the  Commission  decides  to  have  been 
a  reasonable  rate.** 

The  early  theories  of  the  Commission  witli  regard 
to  re]iaration  on  account  of  undue  preferences  and  un- 
just discriminations  were  substantially  modified  after 
the  decision  of  the  Supreme  Court  in  Pennsylvania  R. 
Co.  V.  International  Coal  Co.,*'^  wherein  the  court  held 
that  in  a  discrimination  case  the  damage  to  the  Com- 
plainant, if  any,  may  be  exactly  equal  to  the  difference 
between  the  rates  paid  by  the  complainant  and  those  paid 
by  his  competitors,  that  it  may  be  more  or  it  may  be 
substantially  less,  but  whatever  it  is,  the  complainant 
must  prove  his  damage  with  the  same  degree  of  certain- 
ty that  would  justify  a  judgment  in  court.  In  actions, 
therefore,  for  damages  due  to  unlawful  discriminations 
and  preferences,  accomplished  by  means  of  rebating, 
the  old  theory  that  the  amount  of  the  rebate  furnished 
the  measure  of  damages,  has  been  abandoned.  The  plain- 
tiff must  now  prove  that  he  was  actually  damaged  by 
reason  of  such  undue  discrimination  or  preference,  and 
must  furthermore  prove  the  amount  of  such  damages.**' 

Where  the  payment  of  rebates  to  a  competitor  does 
the  complainant  no  harm,  he  cannot  recover  damages 
on  such  payments  in  a  suit  for  unjust  discrimination.*^ 
"But  it  is  said  that  the  reports  disclose  that  the  Com- 

Texas  &  P.  R.  Co.,  5  I.  C.  C.  44;  &  Myers  Co.  v.  Louisville  &  N.  R. 

Railroad    Commission    of    Florida  Co.,  14  I.  C.  C.  199. 
V    Savannah,  F.   &  W.  Ry.  Co.,   .5  45.    Pennsylvania  R.   Co.   v.   In- 

l   n   n   i^  ternational   Coal  Min.   Co.,  230  U. 


44.    Sanford-Day  Iron  Works  v 
Louisville  &  N.  R.  Co.,  41  I.  C.  C 


S.  184,  57  L.  Ed.  1446,  33  Sup.  Ct. 

893,  Ann.  Cas.  191.5A  315. 

46.    Wilkes  &  Co.  v.  Alabama  G. 
12;    Oden    &    Elliott    v.    Seaboard       g    ^    ^^     39  j    ^    ^    ^^^.   ^^.^^^^ 

Air  Line  R.  Co.,  37  I.  C.  C.  345;  ^  Southern  Ry.  Co.,  32  I.  C.  C.  687; 

National   Wool   Growers   Ass'n   v.  Hormel  &  Co.  v.  Chicago,  M.  &  St. 

Oregon  Short  Line  R.  Co.,  35  I.  C.  p.  Ry.  co.,  30  I.  C.  C.  98. 
C.  675;    Kindleton  v.  Southern   P.  47.    Mitchell  Coal  &  Coke  Co.  v. 

Co.,  17  I.  C.  C.  251;   Nicola,  Stone  Pennsylvania  R.  Co.,  181  Fed.  403. 


§  289]  Damages  under  Commerce  Act.  505 

mission,"  said  Mr.  Justice  \'an  Devantor,''  "applied 
an  erroneous  and  inadmissi])le  measure  of  damages,  and 
tlierefore  that  no  effect  can  be  given  to  the  award.  Wliat 
the  reports  really  disclose  is  that  the  Commission,  'upon 
consideration  of  the  evidence  adduced  ui)<)n  the  hearing 
upon  the  question  of  reparation'  found  (a)  that  by  rea- 
son of  the  unjust  discrimination  resulting  from  giving 
the  rebate  to  the  Lehigh  Valley  Coal  Company  Meeker 
&  Company  were  'damaged  to  the  extent  of  the  ditfer- 
ence'  between  what  they  actually  paid  from  November 
1,  1900,  to  August  1,  1901,  and  what  they  would  have 
paid  had  they  been  dealt  with  on  the  same  basis  as  was 
the  Coal  Company,  and  (b)  that  by  reason  of  being 
charged  an  excessive  and  unreasonable  rate  from  August 
1,  1901,  to  July  17,  1907,  Meeker  &  Company  were 
'damaged  to  the  extent  of  the  difference'  between  what 
they  actually  paid  and  what  they  would  have  paid  had 
they  been  given  the  rate  which  the  Commission  found 
would  have  been  reasonable.  In  this  we  perceive  noth- 
ing pointing  to  the  application  of  an  erroneous  or  in- 
admissible measure  of  damages.  The  Commission  was 
authorized  and  required  by  section  8  of  the  Act  to  Regu- 
late Commerce  to  award  'the  full  amount  of  damages  sus- 
tained,' and  that,  of  course,  was  to  be  determined  from 
the  evidence.  If  it  showed  that  the  damages  correspond- 
ed to  the  rebate  in  one  instance  and  to  the  overcharge 
in  the  other  the  claimant  was  entitled  to  an  award  ui)on 
that  basis.  The  case  of  Pennsylvania  Railroad  v.  Inter- 
national Coal  Mining  Co.,  230  U.  S.  184,  is  cited  as  hold- 
ing otherwise,  but  it  does  not  do  so.  There  a  shipper, 
without  proving  that  he  sustained  any  damages,  sought 
to  recover  from  a  carrier  for  giving  a  rebate  to  another 
shipper,  and  this  court,  referring  to  section  8,  said  (p. 
203) :  'The  measure  of  damages  was  the  pecuniary  loss 
inflicted  on  the  plaintiff  as  the  result  of  the  rebate  paid. 
Those  damages  might  be  the  same  as  the  rebate,  or  less 
than  the  rebate,  or  many  times  greater  than  the  rebate; 
but  unless  they  were  proved  they  could  not  be  recover- 

48.    Meeker  v.  Lehigh  VaUey  R.       35   Sup.  Ct.  328,   Ann.   Cas.    191UB 
Co.,  236   U.   S.   412.  59  L.  Ed.   644,       691. 


506  Duties  to  Interstate  Shippers.  [§  289 

ed.  Whatever  tliey  were  they  could  be  recovered.* 
There  is  nothing-  in  either  report  of  the  Commission 
which  is  in  conflict  with  what  was  said  in  that  case. 
On  the  contrary,  the  plain  import  of  the  fmdings  is  that 
the  amounts  awarded  represent  the  claimant's  actual 
pecuniary  loss;  and,  in  view  of  the  recital  that  the  find- 
ings were  based  upon  the  evidence  adduced,  it  must  be 
presumed,  there  being  no  showing  to  the  contrary,  that 
they  were  justified  by  it." 

§  290.  Parties  Entitled  to  Damages  for  Excessive 
Freight  Charges — Consignors  and  Consignees.  A  party 
entitled  to  recover  damages  for  freight  charges  found 
by  the  Commission  to  be  excessive  is  the  one  who  has 
either,  by  himself  or  by  another,  paid  and  borne  the 
freight  charges  for  the  transportation  service,  irrespec- 
tive of  the  title  of  the  property  shipped.*^  Where  freight 
charges  are  paid  by  the  consignees  but  are  charged  back 
to  the  consignors,  the  consignees  are  not  entitled  to 
reparation.^" 

If  shipments,  are  made  and  sold  f.  o.  b.  destination 
under  a  contract  which  provides  that  if  the  traffic  rate 
shall  decline  or  advance,  the  buyer  is  to  have  the  ben- 
efit of  the  one  and  to  assume  the  burden  of  the  other, 
the  consignors  are  the  parties  entitled  to  a  reparation. ^^ 
But  sometimes  neither  the  consignor  nor  the  consignee 
is  entitled  to  reparation.  Strangers  to  the  transporta- 
tion transaction  may  recover  if  they  have  borne  the 
freight  charges,  for  an  undisclosed  principal  of  a  nom- 
inal shipper  may  maintain  an  action  against  the  car- 
rier.^^ 

49.  Hygienic  Ice  Co.  v.  Chicago  51.  Sloss-SliefReld  Steel  &  Iron 
&  N.  W.  Ry.  Co.,  37  I.  C.  C.  384;  Co.  v.  Louisville  &  N.  R.  Co.,  40 
Oden  &  Elliott  v.  Seaboard  Air  I.  C.  C.  738;  Baker  Mfg.  Co.  v.  Chi- 
Line  Ry.  Co.,  37  I.  C.  C.  345.  cago  &  N.  W.  Ry.  Co.,  21  I.  C.  C. 

50.  Traffic  Bureau  of  the  Sioux  605. 

City  Commercial  Club  v.  Anderson  52.    Ford  v.  Williams,  21  How. 

&   S.   R.   R.   Co.,   37   I.   C.   C.   353;  (U.    S.)    287,   16   L.    Ed.    36;    New 

Commercial  Club  of  Omaha  v.  An-  Jersey  Steam    Nav.    Co.    v.    Mer- 

derson  &  S.  R.  R.  Co.,  27  I.  C.  C.  chants  Bank,  6  How.   (U.  S.)   344, 

302;  Mountain  Ice  Co.  V.  Delaware,  12  L.  Ed.  465;    Oden  &  Elliott  v. 

L.  &  W.  R.  Co.,  21  I.  C.  C.  45.  Seaboard  Air  Line  Ry.  Co.,  37   I. 


§  291]  Damages  under  Commerce  Act.  507 

§  291.  Right  of  Shipper  to  Reparation  When  Arbi- 
trary Sum  is  Added  to  Sale  Price  to  Cover  Excessive 
Charges.  The  ineasme  of  damages  for  tlie  exaction  of 
an  excessive  rate  by  carriers  as  to  interstate  sliipments 
is  the  difference  between  tlie  rate  to  which  the  shipper 
is  entitled  and  the  rate  he  was  compelled  to  pay."  Coun- 
sel for  carriers  as  defendants  in  reparation  cases  have 
frequently  urged  that  if  a  shipper  has  paid  a  rate  that 
is  later  found  to  have  been  unreasonable,  but  has  condi- 
tioned his  commercial  transactions  in  the  light  of  and 
on  the  basis  of  the  rate  paid,  he  has  passed  along  to 
his  vendees  any  damage  he  might  have  sustained  and 
is,  therefore,  not  entitled  to  reparation;  but  this  theory 
has  been  rejected  by  the  Commission  and  the  courts. 

"Ro]iaration  for  the  exaction  of  unreasonable  rates 
cannot  be  denied  because  the  shipper  or  the  consignee, 
from  whom  the  same  has  been  collected,  has,  on  that 
account,  secured  a  high  price  for  the  commodity  from 
the  purchaser;  for,  if  shippers  were  obliged  to  follow 
every  transaction  to  its  ultimate  result,  and  to  trace 
out  the  exact- commercial  effect  of  a  freight  rate  paid 
it  would  never  be  possible  to  show  damages  with  suf- 
ficient accuracy  to  justify  giving  them.'*  In  an 
action  to  recover  damages,  based  upon  an  order  of  the 
Interstate  Commerce  Commission  made  pursuant  to  its 
powers  under  sections  8  and  IG  of  the  Act,  and  award- 

C.  C.  345;  Lindsay  Bros.  v.  Grand  paid  and  that  which  would  have 

Rapids  &  I.  Ry.  Co.,  15  I.  C.  C.  182.  been  paid  under  the  unreasonable 

53.    Michigan   Hardwood   Manu-  rate,   and   has   declined   to  go   be- 

facturers  Ass'n  v.  Transcontinental  yond  the  parties  to  the  transpor- 

Freight    Bureau,    27    I.   C.   C.   32;  tation  contract  in  an  effort  to  prove 

National   Wool   Growers   Ass'n   v.  or  to  disprove  that  the  complain- 

Oregon  Short  Line  R.  Co.,  25  I.  C.  ant   was   damaged."     Annual   Re- 

C.  675;  Nicola,  Stone  &  Myers  Co.  port   of  the   Interstate   Commerce 

V.  Louisville  &  N.  R.  Co.,  14  I.  C.  Commission  for  the  year  1916,  p 

C.  199;  Gardner  &  Clark  v.  South-  75. 
ern  Ry.  Co.  10  I.  C.  C.  342.  54.    Ballou    &    Wright    v.    New 

"With  respect  to  reparation  be-  York,  N.  H.  &  H.  R.  Co.,  34  I.  C. 

cause   of   the   payment   of   a   rate  C   120;  Michigan  Hardwood  Manu- 

that   is   unreasonable   j^er   se,   the  facturers  Ass'n  v.  Transcontinental 

Commission  has  followed  the  rule  Freight    Bureau.   27   1.   C.   C.   32; 

that   the   measure   of   damages   is  Burgess        v.        Transcontinental 

the    difference    between    the    rate  Freight  Bureau,  13  I.  C.  C.  668. 


508  Duties  to  Interstate  Shippers.  [§  291 

ing  reparation  for  oxcessivo  rates  paid  to  a  shipper  for 
the  transportation  of  motorcycles  from  a  point  in  Massa- 
chusetts to  cities  in  Oregon  and  Washington,  the  car- 
riers set  np  in  their  answer,  as  a  defense,  that  the  con- 
signee, who  was  the  complainant,  sold  each  motorcycle 
to  the  trade  at  a  retail  price  of  $15  in  excess  of  the 
factory  list  price,  and  that  this  sum  was  added  to  cover, 
and  did  cover,  the  diiference  in  freight  charges  sought 
to  be  recovered  as  damages  by  the  complainant.  To 
this  defense  the  trial  court  sustained  a  demurrer  and 
refused  to  permit  testimony  in  support  thereof.  In  af- 
firming the  action  of  the  district  court,  the  circuit  court 
of  appeals  held  that  a  shipper  cannot  be  deprived  of  the 
reparation  provided  by  law,  because  in  his  business, 
the  freight  charges  paid  entered  as  an  element  of  cost 
and  were  passed  along  to  the  ultimate  purchaser  in  the 
selling  price.'^'^ 

§  292.  Foregoing  Principle  Approved  by  Federal 
Supreme  Court— Southern  P.  Co.  v.  Darnell-Taehzer 
Lumber  Co.  After  the  cases  cited  in  the  foregoing 
paragraph  were  decided,  the  federal  Supreme  Court 
also  approved  the  principle  that  a  shipper  is  entitled  to 
recover  from  the  carrier  damages  for  the  exaction  of  un- 
reasonable rates  or  charges  although  he  collects  the 
amount  from  the  purchasers  of  the  goods  because  a  car- 
rier ought  not  to  be  allowed  to  retain  its  illegal  profit; 
and  if  a  shipper  were  obliged  to  follow  every  trans- 
action to  its  ultimate  result  and  to  trace  out  the  exact 
commercial  effect  of  the  freight  rate  paid,  it  would  never 
be  possible  to  show  damages  with  sufficient  accuracy  to 
justify  them,^^  ''The  only  question  before  us,"  said 
Mr.  Justice  Holmes,  "is  that  at  wliicli  we  have  hinted: 
Whether  the  fact  that  the  plaintiffs  were  able  to  pass 
on  the  damage  that  tliey  sustained  in  the  first  instance 
by  paying  the  unreasonable  charge,  and  to  collect  that 

55.    New   York,   N.   H.    &   H.   R.  56.    Southern    Pac.    Co.    v.    Dar- 

Co.  V.  Ballou  &  Wright,  C.  C.       nell-Taenzer  Lumber  Co.,  245  U.  S. 

A. ,  242  Fed.  8C2.  531,   62   L.    Ed.   ,   38    Sup.   Ct. 

,  decided  Jan.  21,  1918. 


<^  298]  Damages  under  Commerce  Act.  509 

aiiioiiiil    from  1li<'  purchasers,  provonts  ilicir  recovering 
the  overpayment  from  the  carriers.    Tlie  answer  is  not 
difTionlt.     The  general  tendency  of  tlie  law,  in  regard 
to  damages  at  least,  is  not  to  go  beyond  the  first  step. 
As  it  does  not  attribute  remote  consequences  to  a  defend- 
ant, so  it  holds  him  liable  if  proximately  the  plaintiff 
has  suffei-ed  a  loss.    The  plaintiffs  suffered  losses  to  the 
amount  of  the  verdict  when  they  paid.    Their  claim  ac- 
crued at  once  in  the  theory  of  the  law  and  it  does  not 
inquire  into  later  events.     Olds  vs.  Mapes-Reeve  Con- 
struction Co.,  177  Mass.,  41,  44.     Perhaps  strictly  the 
securing  of  such  an  indemnity  as  the  present  might  be 
regarded  as  not  differing  in  principle  from  the  recovery 
of  insurance,  as  res  inter  alios,  with  which  the  defend- 
ants were  not  concerned.     If  it  be  said  that  the  whole 
transaction  is  one  from  a  business  point  of  view,  it  is. 
enough  to  reply  that  the  unity  in  this  case  is  not  suf- 
ficient to  entitle  the  purchaser  to  recover,  any  more  than 
the  ultimate  consumer  who  in  turn  paid  an  increased 
price.    He  has  no  privity  with  the  carrier.  Staie  vs.  Cent- 
ral Vermont  Ry.  Co.,  81  Vt.  459.     See  Nicola,  Stone  & 
Myers  Co.  vs.  Louisville  &  Nashville  R.  R.  Co.,  14  I.  C.  C. 
207-209.    Baker  Manufacturing  Co.  vs.  Chicago  North- 
western Ry.  Co.,  21  I.  C.  C.  605.     The  carrier  ought  not 
to  be  allowed  to  retain  his  illegal  profit,  and  the  only 
one  who  can  take  it  from  him  is  the  one  that  alone  was 
in  relation  with  him,  and  from  whom  the  carrier  took 
the  sum.    New  York,  New  Haven  &  Hartford  R.  R.  Co. 
vs.  Ballon  &  Wright,  242  Fed.  Rep.,  862.     Behind  the 
technical  mode  of  statement  is  the  consideration  well 
emphasized  by  the  Interstate  Commerce  Commission,  of 
the  endlessness  and  futility  of  the  effort  to  follow  every 
transaction  to  its  ultimate  result.    13  I.  C.  C.  680.    Prob- 
ably in  the  end  the  public  pays  the  damages  in  most 
cases  of  compensated  torts." 

§  293.    Reparation  on  Past  Shipments  not  Automa- 
tically Awarded  on   Finding  that   Rate   is   Excessive. 

When  the  Interstate  Commerce  Commission  linds,  ui)oii 
a  complaint  and  hearing,  that  a  rate  is  unreasonable 
and,  therefore,  in  violation  of  the  act,  it  does  not  thereby 


510  Duties  to  Interstate  Shippers.  [§  293 

follow  that  the  Commission  will  award  reparation  cover- 
ing the  statntor)-  period  of  two  years  prior  to  the  date 
the  complaint  was  filed  upon  the  basis  of  the  new  rate  es- 
tablished and  found  to  be  reasonable;"  for  a  rate  may  be 
reasonable  at  one  period  of  its  existence,  and  at  a  later 
period  unreasonable  because  of  changed  conditions  and 
circumstances.''  There  is  no  conclusive  presumption  that 
a  rate  reasonable  at  one  time  was  reasonable  a  month 
or  a  year  before,  since  reasonable  rates  vary  from  time 
to  time.  Where,  therefore,  rates  have  been  established 
and  maintained  by  a  carrier  in  good  faith,  especially 
where  they  have  been  long  in  eiTect  and  acquiesced  in 
by  shippers  without  protest,  the  Commission  will  not 
award  reparation,  even  though  the  rate  is  reduced,  un- 
less it  clearly  appears  that  the  rates  paid  in  the  past 
have  been  excessive.^^ 

In  every  case  where  reparation  is  demanded,  the 
Commission  must  fix  the  point  of  time  when  the  rate 
became  unreasonable,  must  determine  when  shippers 
were  entitled  to,  and  when  carriers  ought  to  have  estab- 
lished the  rate  found  reasonable.  Each  case  must  de- 
pend upon  its  own  facts.^"  The  general  principles  deter- 
mining when  reparation  will  be  awarded  were  thus  stated 
by  the  Commission:"  "An  award  of  the  Commission  in 
reparation  of  damages  resulting  from  a  violation  of  the 

57.  Coffey ville  Mercantile  Co.  v.  Line  R.  Co.,  24  I.  C.  C.  81;  Mem- 
Missouri,  K.  &  T.  Ry.  Co.,  33  I.  phis  Freight  Bureau  v.  St.  Louis  & 
C.  C.  122:  Memphis  Freight  Bureau  S.  F.  Ry.  Co.,  21  L  C.  C.  113; 
V.  Illinois  Cent.  R.  Co.,  27  I.  C.  C.  Sweeney,  Lynes  &  Co.  v.  New  York, 
507;  Waukesha  Lime  &  Stone  Co.  P.  &  N.  R.  Co.,  20  I.  C.  C.  600; 
V.  Chicago,  M.  &  St.  P.  Ry.  Co.,  26  Riverside  Mills  v.  Charleston  & 
I.  C.  C.  515;  Minneapolis  Steel  &  W.  C.  Ry.  Co.,  20  I.  C.  C.  423. 
Machinery  Co.  v.  Chicago,  M.  &  St.  58.  Carter  White  Lead  Co.  v. 
P.  Ry.  Co.,  26  I.  C.  C.  193;  New  Norfolk  &  W.  Ry.  Co.,  21  I.  C.  C. 
Pittsburgh    Coal    Co.    v.    Hocking  41. 

Valley   Ry.   Co.,   26   I.   C.   C.   121;  59.    Penrod  Walnut  &  Veneer  Co. 

Lewis  V.  Chicago,  B.  &  Q.  R.  Co..  v.  Chicago,  B.  &  Q.  R.  Co.,  15  I.  C. 

25   L   C.   C.   97;    Kellogg   Toasted  C.  326. 

Corn  Flake  Co.  v.  Michigan  Cent.  60.    In    re    Wool,    Hide    &    Pelt 

R.  Co.,  24  I.  C.  C.  604;    Railroad  Rates,  25  I.  C.  C.  675. 

Commission  of  Oregon  v.  Southern  61.    Anadarko  Cotton  Oil  Co.  v. 

P.   Co.,   24   I.   C.   C.   273;    Holland  Atchison,  T.  &  S.  F.  Ry.  Co.  20  I. 

Blow  Stave  Co.  v.  Atlantic  Coast  C.  C.  43. 


§  293]  Damages  under  Commerce  Act.  511 

Act  to  Regulate  Commerce  is  not  enforceable  as  such,  but 
in  a  suit  in  court  for  such  damages  the  findings  and 
order  of  the  C^ommisison  are  prima  facie,  evidence  in 
suppoi-t  thereof.  It  follows  that  the  Commission  is  not 
justified  in  awarding  damages  in  any  case  except  on  a 
basis  as  certain  and  definite  in  law  and  in  fact  as  is 
essential  to  the  support  of  a  final  judgment  or  decree 
requiring  the  payment  of  a  definite  sum  of  money  by  one 
party  to  another.  The  standard  of  the  law  by  which 
the  validity  of  any  rate  as  affected  by  its  amount  is 
determined,  is  not  more  definite  than  that  it  must  be 
reasonable  and  just.  The  test  of  reasonableness  can  be 
applied  only  by  reference  to  and  upon  consideration  of 
all  pertinent  facts,  circumstances,  and  conditions  affect- 
ing the  rate  in  effect  at  any  particular  time.  In  the 
nature  of  the  case  there  can  be  no  rule  or  process  where- 
by the  definite  absolute  maximum  limit  of  reasonable- 
ness in  the  amount  of  a  rate  can  be  fixed  with  the 
certainty  of  a  demonstration.  The  law  imposes  upon 
carriers  the  duty  of  initiating  their  rates,  under  the 
injunction  of  the  statute  that  they  shall  be  reasonable 
and  just.  In  the  performance  of  this  duty  by  the  car- 
riers they  must  exercise  judgment  and  discretion  by  a 
like  resort  to  existing  facts,  circumstances,  and  condi- 
tions in  the  first  instance,  just  as  the  Commission  must 
later  do  when  the  rates  are  brought  in  question  before 
it.  The  carriers  are  presumed  to  act  in  good  faith  in 
their  exercise  of  discretion  and  judgment  under  this 
somewhat  indefinite  standard  of  the  statute  in  its  prac- 
tical application,  and  therefore  rates  established  by  the 
carriers  can  not  be  condemned  except  upon  investiga- 
tion and  full  hearing.  A  rate  reasonable  in  view  of  the 
circumstances  and  conditions  when  it  is  estal)lished  may 
in  course  of  time  become  unreasonable  by  virtue  of 
changed  circumstances  and  conditions.  It  is  manifestly 
impracticable  for  the  carriers  or  the  Commission  in  such 
a  case  to  determine  at  what  exact  time  in  the  gradual 
process  of  changes  the  rate  becomes  unreasonable.  In 
the  matter  before  us  it  appears  that  some  of  the  rates 
between  many  of  the  points  involved  were  formerly 
higher  than   at  present,   and   the  situation   here   fairly 


512  Duties  to  Interstate  Shippers.  [§  293 

illustrates  what  lias  taken  place  elsewhere  in  reductions 
from  time  to  time  in  rates  as  the  density  of  traffic  in- 
creases with  that  of  population  and  business  develop- 
ment in  a  new  and  growing  community.  It  would  be  a 
manifestly  harsh  rule  that  would  assume  a  rate  now 
condemned  as  unreasonable  to  have  been  so  for  a  period 
of  two  years,  or  that  of  the  statute  of  limitations,  in 
the  past  as  a  basis  for  the  payment  of  money  by  the 
carriers  on  past  shipments,  especially  when  no  com- 
plaint had  been  made  against  them  within  that  period. 
Certain  it  is  that  the  law  establishes  no  such  presump- 
tion, nor  is  it  a  necessary  sequence  that  the  rate  has 
been  unreasonable  for  any  period  in  the  past.  Neither 
does  it  seem  that  the  bona  fide  action  of  the  carriers  in 
the  necessary  exercise  of  their  judgment  within  reason- 
able limits  should  always  be  at  their  peril  of  liability 
for  reparation  for  the  difference  between  rates  initiated 
upon  their  judgment  and  later  changed  upon  the  judg- 
ment of  the  Commission.  Therefore  the  awarding  of  rep- 
aration by  no  means  necessarily  follows  the  reduction  of 
a  rate,  whether  by  the  voluntary  action  of  the  carriers 
or  by  order  of  the  Commission.  When  a  rate  is  ad- 
vanced and  the  increased  rate  is  condemned  by  the 
amount  of  the  advance,  a  much  more  satisfactory  basis 
for  an  award  of  reparation  is  afforded  than  in  a  case 
like  the  one  before  us,  where  so  far  as  changes  have 
occurred  they  have  been,  at  least  for  the  most  part, 
reductions  in  a  territory  where  changes  in  conditions 
have  taken  place  which  contribute  in  greater  or  less 
degree  to  a  present  showing  of  unreasonableness  in  ex- 
isting rates.  Again  our  records  show  in  many  instances 
that  rates  have  long  remained  in  the  tariffs,  sometimes 
without  frequent  occasion  on  the  part  of  shippers  to  use 
them,  and  when  traffic  has  been  offered  to  which  they 
were  applied  they  have  not  only  been  challenged  by  the 
shipper  as  unreasonable,  but  conceded  to  be  so  by  the 
carriers  and  clearly  so  found  by  the  Commission  by 
comparison  with  other  rates  and  by  other  suitable  tests, 
and  orders  for  reparation  have  followed.  The  reference 
to  particular  circumstances  and  conditions  in  the  classes 
of  cases  just  mentioned  is  not  an  intimation  that  awards 


<§  296]  Damages  under  Commerce  Act.  513 

of  reparation  are  to  be  confined  to  such  cases.  It  is 
intended  only  to  make  clearer  our  view  that  whatever 
may  be  the  nature  of  the  facts,  circumstances  and  con- 
ditions appearing  in  a  particular  case  where  reparation 
is  involved,  whether  on  account  of  excessive  rates  or  by 
reason  of  unjust  discrimination,  there  must  be  that  de- 
gree of  certainty  and  satisfactory  conviction  in  the  mind 
and  judgment  of  the  Commission  as  would  be  deemed 
necessary  under  the  well-established  principles  of  law 
as  a  basis  for  a  judgment  in  court." 

§  294.  Damages  Growing  out  of  Inadequate  Ser- 
vice or  Facilities.  Tlie  Commission  has  hehl  that  it  has 
jurisdiction  to  award  damages  or  reparation  growing 
out  of  an  unjust  discrimination  and  preference  in  train 
service  equipment  furnished  for  the  transportation  of 
milk  in  carloads  from  one  state  to  another."^ 

§  295.  Damages  for  Misrouting  Shipments  May  be 
Awarded  by  Commission,  When.  The  Act  to  Regulate 
Commerce  confers  upon  the  Commission  jurisdiction 
over  a  complaint  for  the  recovery  of  a  damage  resulting 
from  misrouting  a  shipment,  where  such  damage  arises 
from  a  rate  or  charge  in  excess  of  the  lawful  rate  or 
charge  that  would  have  applied  via  the  route  over 
which  the  shipment  properly  should  have  moved  or  a 
movement  which  was  specifically  directed  by  the  ship- 
per,®^ 

§  296.  Reparation  Awarded  by  Commission  for 
Overcharges  a  Bar  to  Subsequent  Action  for  Additional 
Damages.  The  statute  contemplates  that  when  a  ship- 
IDer  makes  his  complaint  to  the  Commission  for  repara- 
tion because  of  excessive  rates  or  charges,  the  Commis- 
sion may  award  to  him  the  full  amount  of  damages 
sustained.     A   shipper  may  not,  therefore,   after  com- 

62.  Graustein  v.  Boston  &  M.  R.  &  Co.  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  45  I.  C.  C.  393.  Co.,  18  I.  C.  C.  132;  Kile  &  Morgan 

63.  Noble  v.  Jonesboro,  I.  C.  &  Co.  v.  Deepwater  Ry.  Co.,  15  I.  C. 
E    R.  Co.,  20  I.  C.  C.  520;  Cressey  C.  235. 

1    Control   Caniors   33 


514  Duties  to  Interstate  Shippers.  [§  296 

plaining  to  the  Interstate  Commerce  Commission  and 
obtaining  a  sum  as  reparation  for  unreasonable  rates, 
institute  and  prosecute  an  action  for  damages  to  his 
business  because  the  carrier  wilfully  and  maliciously 
maintained  unreasonable  rates."  "The  Court  of  Ap- 
peals," said  Mr.  Justice  Holmes  in  the  case  cited,  "de- 
cided that  the  Act  to  Regulate  Commerce  committed  to 
the  Interstate  Commerce  Commission  only  the  granting 
of  special  relief  aganst  the  making  of  an  overcharge  and 
that  the  satisfaction  of  the  Commission's  award  still 
left  open  an  action  in  the  state  courts  .to  recover  what 
are  termed  general  damages — such  as  are  supposed  to 
have  been  recovered  in  this  case.  In  this  we  are  of 
opinion  that  the  court  was  wrong.  By  section  8  a  com- 
mon carrier  violating  the  commands  of  the  act  is  made 
liable  to  the  person  injured  thereby  'for  the  full  amount 
of  damages  sustained  in  consequence'  of  the  violation. 
By  section  9  any  person  so  injured  may  make  com- 
X3laint  to  the  Commission  or  may  sue  in  a  court  of  the 
United  States  to  recover  the  damages  for  which  the  car- 
rier is  liable  under  the  act,  but  must  elect  in  each  case 
which  of  the  two  methods  of  procedure  he  will  adopt. 
The  rule  of  damages  in  one  hardly  can  be  different  from 
that  proper  for  the  other.  An  award  directing  the 
carrier  to  pay  to  the  complainant  the  sum  to  which  he 
is  entitled  is  provided  for  by  section  16.  By  the  same 
section  if  the  carrier  does  not  comply  in  due  time  with 
the  order,  the  complainant  may  sue  in  a  state  court — 
which  implies  that  if  the  order  has  been  complied  with, 
and  the  money  paid,  no  suit  can  be  maintained.  It  is 
to  be  noticed  further  that  reparation  before  answer  is 
contemplated  as  possible  by  section  13,  and,  in  that 
case,  the  carrier  shall  be  relieved  of  liability  to  the 
complainant  though  only  of  course  for  the  particular 
violation  of  law.  The  decisions  say  that  whatever  the 
damages  were  they  could  be  recovered;  Pennsylvania  R. 
R.  Co.  V.  International  Coal  Mining  Co.,  230  U.  S.  184, 

64.    Louisville    &    N.    R.    Co.    v.       Ohio  Valley  Tie  Co.,  242  U.  S.  288, 

61  L.  Ed.  305,  37  Sup.  Ct.  120. 


§  297]  Damages  under  Commerce  Act.  515 

202,  203;  Meeker  v.  Lehi^Hi  Valley  R.  R.  Co.,  236  U.  S. 
412,  429;  and  tliat  the  statute  determines  the  extent  of 
damages.  Pennsylvania  R.  R.  Co.  v.  Clark  Brothers  Coal 
Mining  Co.,  238  U.  S.  456,  472.  We  are  of  opinion  that 
all  damage  that  projierly  can  he  attrihuted  to  an  over- 
charge, whether  it  be  the  keeping  of  the  plaintiff  out 
of  its  money,  dwelt  upon  by  the  trial  court,  or  the 
damage  to  its  business  following  as  a  remote  result  of 
the  same  cause,  must  be  taken  to  have  been  considered 
in  the  award  of  the  Commission  and  compensated  when 
that  award  was  paid." 

§  297.  Findings  of  Commission  on  Reasonableness 
of  Rates  Inure  to  Benefit  of  Every  Person  Paying  the 
Unjust  Rate.  A  proceeding  before  the  Interstate  Com- 
merce Commission  to  determine  the  reasonableness  'of 
an  advance  in  rates  filed  with  the  Commission  by  car- 
riers is  not  in  the  nature  of  a  private  litigation  between 
the  parties  who  are  complainants,  and  the  carriers,  but 
is  a  matter  of  public  concern  in  which  the  whole  body 
of  shippers  who  are  compelled  to  pay  the  unjust  rate 
are  interested.  Such  proceedings  inure  to  the  benefit 
of  not  only  those  who  are  complainants,  but  all  others 
not  named  as  complainants  who  were  affected  by  the 
unjust  rate.  A  general  finding  and  order  declaring  a 
rate  unreasonable,  may  be  taken  advantage  of  by  other 
shippers  through  appropriate  proceedings  before  the 
Commission  or  the  courts.**^ 

65.  Phillips  Co.  v.  Grand  Trunk  not  a  party  before  the  Commission 
Western  R.  Co.,  236  U.  S.  662,  59  the  defendants  insist  that  it  can- 
L.  Ed.  774,  35  Sup.  Ct.  444,  in  not  take  advantage  of  the  order 
which  the  court  said:  "The  Phil-  that  the  rate  was  unjust,  so  as  to 
lips  Company,  relying  on  a  find-  be  able  to  maintain  the  present 
ing  by  the  Commission  on  the  com-  suit.  But  the  proceeding  before 
plaint  of  the  Yellow  Pine  Associa-  the  Commission,  to  determine  the 
tion,  that  a  2  cents  advance  in  a  reasonableness  of  the  2  cents  ad- 
lumber  rate  was  unreasonable,  vance,  was  not  in  the  nature  of 
brought  suit  against  four  carriers  private  litigation  between  a  Lum- 
to  recover  an  overcharge  collected  ber  Association  and  the  carriers, 
on  90.432,500  pounds  of  lumber  but  was  a  matter  of  public  concern 
shipped  to  it  over  their  connect-  in  which  the  whole  body  of  ship- 
ing  lines.    But  as  the  plaintiff  was  pers  was  interested.     The  inquiry 


516  Duties  to  Inteestate  Shippers.  [§  298 

§  298.  Findings  of  Fact  Required  When  Commis- 
sion Awards  Damages  Against  a  Carrier.  In  all  com- 
plaints for  damages  prosecuted  before  the  Commission 
against  a  common  carrier  for  a  violation  of  any  of  the 
provisions  of  the  Act,  the  statute  requires  the  Commis- 
sion to  make  a  report  in  writing  in  respect  thereto, 
which  shall  state  the  conclusions  of  the  Commission 
together  with  its  decision  and  order.  If  damages  are 
awarded,  the  report  of  the  Commission  shall  include 
the  findings  of  fact  on  which  the  award  is  made.*'*'  The 
order  must  also  direct  the  carrier  to  pay  to  the  com- 
plainant the  sum  to  which  he  is  entitled  on  or  before 
a  day  named  therein.*'^ 

The  statute  does  not  require  that  the  report  contain 
the  evidential  or  primary  facts — a  finding  of  the  ultimate 
facts  is  sufficient.''  "Another  objection,"  said  the 
court  in  the  Meeker  case,  cited,  "which  was  directed 
against  the  orders  as  well  as  the  reports  is  that  they 
contain  no  findings  of  fact  or  at  least  not  enough  to 
sustain  an  award  of  damages.  The  arguments  advanced 
to  sustain  this  objection  proceed  upon  the  theory  that 
the  statute  requires  that  the  reports,  if  not  the  orders, 
shall  state  the  evidential  rather  than  the  ultimate  facts, 
that  is  to  say,  the  primary  facts  from  which  through 
a  process  of  reasoning  and  inference  the  ultimate  facts 

as  to  the  reasonableness  of  the  ad-  similarly  situated  were  entitled  by 

vance  was   general  in   its   nature.  appropriate  proceedings  before  the 

The  finding  thereon  was  general  in  Commission  or  the  courts  to  obtain 

its   operation   and    inured   to   the  the  benefit  of  that  general  finding 

benefit  of  every  person   that  had  and  order." 

been  obliged  to  pay  the  unjust  rate.  66.    Section    14    of    the    Act    to 

Otherwise  those  who  filed  the  com-  Regulate   Commerce,   appendix   A, 

plaint,    or    intervened    during   the  infra. 

hearing,    would    have    secured    an  67.    Section    16    of    the    Act    to 

advantage  over  the   general   body  Regulate   Commerce,   appendix   A, 

of  the  public,  with  the  result  that  ^^^^^_ 

the  order  of  the  Commission  would  68.    Mills    v.    Lehigh   Valley   R. 

have  created  a  preference  in  favor  ^^^  ^^^  ^    ^    ^^^^  ^^  ^    ^^    ^^^^^ 
of  the  parties  to  the  record   and  ^^  ^^^^^^  ^   ^^^^.^^ 

would    have    destroyed    the    very  ^^  „    ^  ^    ^       „„„   ^^    _     ..„    -^ 

uniformity   which    that   body   had  Valley   R.    Co.,   236   U.    S.    412     59 

been    organized    to    secure.      The  L.  Ed.  644.  35  Sup.  Ct.  328,  Ann. 

plaintiff  and   every   other  shipper  Cas.  1916B  691. 


§  299]  Damages  under  Commerce  Act.  517 

may  be  determined.      We  tliink   this  is   nut   tlie   ri^^ht 
view  of  the  statute  and  that  wliat  it  ref|uii'es  is  a  finding 
of  tlie  ultimate  facts — a  finding   whieli,   as   ajjplied   to 
the  present  case,  would  disclose  (1)   the  relation  of  tlie 
parties  as  shipper  and  carrier  in  interstate  commerce; 
(2)  the  character  and  amount  of  the  traffic  out  of  which 
the  claims  arose;  (3)  the  rates  paid  by  the  shipper  for 
the  service  rendered  and  whether  they  were  according 
to  the  established  tariff;  (4)  whether  and  in  what  way 
unjust  discrimination  was  practiced  against  the  shij^per 
from  November  1,  1900,  to  August  1,  190J ;  (5)  whether, 
if  there  was  unjust  discrimination,  the  sliijjper  was  in- 
jured thereby,  and,  if  so,  the  amount  of  his  danmges; 
(6)   whether  the  rate  collected  from  the  shipper  from 
August  ],  1901,  to  July  17,  1907,  was  excessive  and  un- 
reasonable, and,  if  so,  what  would  have  been  a  reason- 
able rate  for  the  service;  and   (7)   whether,  if  the  rate 
was  excessive   and   unreasonable,   the   shipper   was   in- 
jured thereby,  and,  if  so,  the  amount  of  his  damages. 
Upon  examining  the  reports  as  set  forth  in  the  record, 
we  think  they  contain  findings  of  fact  wiiicli  meet  the 
requirements  of  the   statute  and  that  the  facts  stated 
in  the  findings,  if  taken  as  iirima  facie  true,  sustain  the 
award   of  the  Commission.     True,  the  findings  in  the 
original  report  are  interwoven  with   other  matter  and 
are  not  expressed  in  the  terms  which  courts  generally 
employ  in  special  findings  of  fact,  but  there  is  no  dif- 
ficulty in  separating  the  findings  from  the  other  matter 
or  in  fully  understanding  them,  and  particularly  is  this 
true  when  the  two  reports  are  read  together,  as  they 
should  be.    We  say  'should  be'  because  both  were  made 
in  the  same  proceeding  and  the  later  one  affirmatively 
shows  that  it  was  made  to  supplement  and  give  effect 
to  the  original." 

§  299.  Statute  Prescribing  Findings  and  Orders  of 
Commission  Prima  Facie  Evidence  of  Facts  Therein 
Stated,  Constitutional.  The  seventh  amendment  to  the 
Constitution  of  the  United  States  provides  that  in  suits 
at  common  law  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 


518  Duties  to  Interstate  Shippebs.  [§  299 

be  preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wise reexamined  in  any  court  of  the  United  States.*'^ 
The  fifth  amendment  provides  that  no  person  shall  be 
deprived  of  his  liberty  or  property  without  due  process 
of  law. 

The  provision  of  Section  16  of  the  Interstate  Com- 
merce Act  which  prescribes  that  in  proceedings  for 
damages  before  the  Commission,  the  findings  and  orders 
of  the  Commission  shall  be  prima  facie  evidence  of  the 
facts  therein  stated,  is  not  repugnant  to  either  of  the 
foregoing  constitutional  provisions.'^"  "This  provision," 
said  the  court  in  the  Meeker  case,  cited,  "only  estab- 
lished a  rebuttable  presumption.  It  cuts  off  no  defense, 
interposes  no  obstacle  to  a  full  contestation  of  all  the 
issues,  and  takes  no  question  of  fact  from  either  court 
or  jury.  At  most  therefore  it  is  merely  a  rule  of  evi- 
dence. It  does  not  abridge  the  right  of  trial  by  jury 
or  take  away  any  of  its  incidents.  Nor  does  it  in  any 
wise  work  a  denial  of  due  process  of  law.  In  principle 
it  is  not  unlike  the  statutes  in  many  of  the  States 
whereby  tax  deeds  are  made  prima  facie  evidence  of 
the  regularity  of  all  the  proceedings  upon  which  their 
validity  depends.  Such  statutes  have  been  generally 
sustained.  Pillow  v.  Eoberts,  13  How.  472,  476;  Marx 
V.  Hanthorn,  148  U.  S.  172,  182;  Turpin  v.  Lemon,  187 
U.  S.  51,  59;  Cooley's  Constitutional  Limitations,  7th 
ed.  525,  as  have  many  other  state  and  Federal  enact- 
ments establishing  other  rebuttable  presumptions.  Mo- 
bile etc..  Railroad  v.  Turnispeed,  219  U.  S.  35,  42;  Lind- 

69.    Lloyd  v.  DoUison,  194  U.  3.  358,  11  Sup.   Ct.  712;   Aetna  Life 

445,  48  L.  Ed.  1062,  24  Sup.  Ct.  703;  Ins.  Co.  v.  Ward,  140  U.  S.  76,~35 

Long  Island   Water-Supply  Co.  v.  L-  Ed.  371,  11  Sup.  Ct.  720;  Wilson 

City  of  Brooklyn,  166  U.  S.  685,  41  v.  Everett,  139  U.  S.  616.  35  L.  Ed. 

L.  Ed.  1165,  17  Sup.  Ct.  718;  Chi-  286,   11   Sup.   Ct.   664;    Pearson   v. 

cago,    B.   &   Q.    R.    Co.   v.   City   of  Yewdall,   95   U.   S.   294,   24  L.  Ed. 

Chicago,  166  U.  S.  226,  41  L.  Ed.  436. 

979,  17   Sup.   Ct.   581;    Iowa  Cent.  70.   Pennsylvania  R.  Co.  v.  W.  F. 

Ry.  Co.  V.  State,  160  U.  S.  389,  40  Jacoby  &  Co.,  242  U.  S.  89.  61  L. 

L.  Ed.  467,  16  Sup.  Ct.  344;  Rogers  Ed.    165,   37   Sup.   Ct.   49;    Meeker 

V.   United    States,   141   U.   S.    548,  v.  Lehigh  Valley  R.  Co.,  236  U.  S. 

35  L.  Ed.  853,  2  Sup.  Ct.  91;  Scott  412,  59  L.  Ed.  644,  35  Sup.  Ct.  328, 

V.  Neely,  140  U.  S.  106,  35  L.  Ed.  Ann.  Cas.  1916B  691. 


§  300]  Damaoes  undkk  Commkrck  Act.  519 

sloy  V.  Natural  Carbonic  Gas  Co.,  220  IJ.  S.  Gl,  cSl;  Reit- 
ler  V.  Harris,  223  U.  S.  437;  Luria  v.  United  States,  231 
U.  S.  9,  25.  An  instructive  case  upon  tlie  suliject  is 
Holmes  v.  Hunt,  122  Massachusetts,  505,  wliere,  in  an 
elaborate  opinion  by  Chief  Justice  Gray,  a  statute  mak- 
ing the  report  of  an  auditor  prima  facie  evidence  at  the 
trail  before  a  jury  was  held  to  be  a  legitimate  exercise 
of  legislative  })ower  over  rules  of  evidence  and  in  no 
wise  inconsistent  with  the  constitutional  right  of  trial 
^^y  J^iO"-  And  in  Chicago,  etc..  Railroad  v.  Jones,  149 
Illinois,  361  382,  a  like  ruling  was  made  in  respect  of  a 
statut(jry  ])rovision  similar  to  that  now  before  us." 

§  300.  Commission  May  Order  Reparation  without 
Prescribing  Maximum  Rate  to  be  Observed  in  the  Future. 
The  Circuit  Court  of  Appeals  in  Denver  &  R.  G.  R.  Co. 
V.  Baer  Bros.  Mercantile  Co.,''  decided  that  the  Inter- 
state Commerce  Commission  could  not  make  an  order 
of  reparation  unless  at  the  same  time,  and  as  a  part  of 
such  order,  it  fixed  a  rate  to  be  charged  in  the  future; 
but  on  writ  of  error  to  the  Supreme  Court,  that  tribunal 
held  that  an  order  of  reparation  was  valid,  although 
the  Commission  had  not  therein  fixed  a  new  and  just 
rate  for  the  future.'-  "That  the  two  subjects  of  Repara- 
tion and  Rates,"  said  Mr.  Justice  Lamar,  "may  be  dealt 
with  in  one  order  is  undoubtedly  true.  Texas  &  Pae. 
Rv.  V.  Abilene,  204  U.  S.  426,  446.  Robinson  v.  Bait. 
&  Ohio  R.  R.,  222  U.  S.  506,  509.  But  awarding  repara- 
tion for  the  past  and  fixing  rates  for  the  future  involve 
the  determination  of  matters  essentially  different.  One 
is  in  its  nature  of  matters  essentially  different.  One 
is  in  its  nature  x)rivate  and  the  other  public.  One  is 
made  by  the  Commission  in  its  g?<i7.9i-judieial  capacity 
to  measure  past  injuries  sustained  by  a  private  shipper; 
the  other,  in  its  (?im5z-legislative  capacity,  to  prevent 
future  injury  to  the  public.    But  testimony  showing  the 

71.  109  C.  C.  A.  337,  187  Fed.  485.       Denver  &  R.  G.  R.  Co.,  233  U.  S. 

72.  Baer  Bros.  Mercantile  Co.  v.       479,  58  L.  Ed.  1055,  34  Sup.  Ct.  641. 


520  Duties  to  Interstate  Shippers.  [§  300 

unreasonableness  of  a  past  rate  may  also  furnish  in- 
formation on  which  to  fix  a  reasonable  future  rate  and 
both  subjects  can  be,  and  often  are,  disposed  of  by  the 
same  order.  Tliis,  however,  is  not  necessarily  so.  In- 
deed, under  the  original  Commerce  Act,  the  two  matters 
could  not  possibly  be  combined  in  a  single  order  for  the 
reason  that,  while  at  that  time  the  Commission  could 
order  the  carrier  to  desist  from  unreasonable  practices 
and  award  damages,  it  could  not  fix  rates.  This  brought 
about  an  anomalous  state  of  affairs.  For  if  the  shipper 
obtained  his  order  of  reparation  because  of  unreason- 
able charges  which  the  Railroad  Company  was  ordered 
to  discontinue,  a  slightly  different,  but  still  unreason- 
able, rate  might  be  put  in  for  the  future,  which  the 
shipper  had  to  pay  and  again  institute  proceedings  for 
reparation.  Section  15,  Act  of  February  4,  1887,  c.  104, 
24  Stat.  379,  384.  This  situation  was  dealt  with  by  the 
Hepburn  Act,  which,  in  addition  to  the  existing  power 
to  make  reparation,  conferred  upon  the  Commission  the 
new  power  to  make  rates  for  the  future.  But  the  two 
matters  were  treated  as  different  subjects  and  were 
dealt  with  in  separate  sections.  Section  4  conferred  the 
power  of  making  rates.  Section  5  gave  the  Commission 
IDower  to  make  reparation  orders.  Sections  4,  5,  act  of 
June  29,  1906,  c.  3591,  34  Stat.  584,  589,  590.  Not  only 
were  the  two  functions  separately  treated,  but  an  analy- 
sis of  the  act  shows  that  there  is  no  such  necessary 
connection  between  them  as  to  make  the  quasi-judicial 
order  for  reparation  depend  for  its  validity  upon  being 
joined  with  a  quasi-legislatWe  order  fixing  rates.  Per- 
sons entitled  to  one  may  have  no  interest  in  the  other. 
Persons  interested  in  both  may  be  entitled  to  reparation 
and  not  to  a  new  rate;  or  to  a  new  rate  and  not  to  repara- 
tion. For  example,  sec.  13  (24  Stat.  383)  permits  'any 
mercantile,  agricultural  or  manufacturing  society  or  any 
body  public  or  municipal  organization  to  make  com- 
plaints against  the  carrier.'  On  the  application  of  such 
bodies,  old  rates  might  be  declared  unjust  and  new  rates 
established,  but,  of  course,  no  reparation  would  be  given, 
for  the  reason  that  such  complainants  were  not  shippers 
and,  therefore,  not  entitled  to  an  award  of  pecuniary 


§  300]  Damages  under  Commerce  Act.  521 

damages.  Cf.  T.ouisvilh',  etc.,  R.  R.  v.  Jut.  Com.  Comm., 
227  U.  S.  88.  Then,  too,  tliere  are  cases  in  which  a  rate, 
reasona])le  wlicn  made,  })ecomes  imreasonable  as  the 
result  of  a  gradual  change  in  conditions,  so  that  no 
reparation  is  ordered  even  though  a  new  rate  be  estab- 
lished for  the  future.  Anadarko  Cotton  Oil  Co.  v.  Atclii- 
son,  etc.,  Ry.,  20  I.  C.  C.  43.  Conversely,  there  may 
be  cases  where  what  was  an  unreasonal)le  rate  in  the 
past  is  found  to  be  reasonable  at  the  date  of  the  hearing. 
In  such  a  case  reparation  would  be  awarded  for  past 
unreasonable  charges  collected  but  no  new  rate  would 
be  established  for  the  future.  It  may,  however,  be  said 
that  even  in  such  a  case,  tlie  order  while  condemning 
the  rate  for  the  past,  should  contain  a  provision  validat- 
ing it  for  the  future.  But  while  tliis  consideration 
might  show  that  it  was  erroneous  not  to  name  tlie  new 
rate,  it  would  not  follow  that  the  order  awarding 
reparation  was  void.  The  Hepburn  Act  treates  the  two 
subjects  as  related,  but  independent.  The  grounds  of 
complaint  may  be  joint  or  separate,  and  the  very  fact 
that  they  may  sometimes  be  separate  shows  that  the 
presence  of  both  is  not  jurisdictional  and  that  the  ab- 
sence of  a  provision  for  one  need  not  operate  to  invali- 
date an  order  as  to  the  other.  This  conclusion  is  strength- 
ened by  considering  the  hardships  that  would  result 
from  nullifying  a  reparation  order  for  error  in  omitting 
a  provision  for  the  future  rate.  It  would  punish  the 
shiijper  for  the  failure  of  the  Commission.  It  would  de- 
prive him  of  his  award  of  damages  for  his  iirivate  in- 
jury, because  of  the  Commission's  omission  to  make  a 
rate  for  the  benefit  of  the  public.  The  shipper  might 
or  might  not  intend  to  remain  in  business.  He  might"  or 
he  might  not  be  interested  in  future  rates.  He  might 
have  been  able  to  prove  unreasonableness  as  to  the  past 
without  being  able  to  furnish  evidence  as  to  what  would 
be  reasonable  for  the  future.  Or,  the  Commission  might 
be  in  position  to  say  witli  certainty  that  the  rates  had 
been  unreasonable  and  award  reparation  accordingly, 
but  it  might  require  a  protracted  and  lengthy  hearing 
to  establish  what  would  be  just  for  the  future.  To  make 
the  shipper  wait  on  such  a  finding  and  deprive  him  of 


522  Duties  to  Interstate  Shippees.  [§  300 

his  ]iresent  right  to  reparation,  until  the  determination  of 
an  independent  question,  would  work  a  hardship  not 
contemplated  by  the  act  and  not  required  by  any  of  its 
provisions.  The  present  case  illustrates  some  of  these 
features.  The  plaintiff's  petition  asked  for  reparation 
and  that  the  Commission  would  establish  just  rates.  On 
the  hearing-  it  appeared  that  there  was  no  through  route 
or  joint  rate  and  that  the  established  local  charge  of 
one  of  the  carriers  was  just  while  that  of  the  other  had 
not  been  established  or  included  in  a  filed  tariff  and 
was  also  unjust.  The  evidence  was  sufficient  to  sustain 
a  finding  of  damages  against  such  carrier,  but  it  did 
not  show  how  the  through  rate  should  be  divided  be- 
tween the  two  companies,  one  of  which  hauled  923 
miles  and  the  other  160  miles.  The  carriers  did  not  ask 
for  an  extension  of  the  time  within  which  the  repara- 
tion should  be  paid.  The  fact  that  they  were  given  an 
opportunity  to  agree  on  a  through  rate  and  how  it 
should  be  divided,  ought  not  to  deprive  plaintiff  of  its 
rights  to  damages  for  the  past,  under  a  reparation 
order  which  could  not,  by  any  possibility,  be  changed 
by  any  subsequent  finding  as  to  rates  for  the  future." 

§  301.  Actions  to  Enforce  Orders  of  Commission 
Awarding  Damages  may  be  Prosecuted  in  State  as  well 
as  Federal  Courts.  When  a  statute  creates  a  right  and 
designates  the  court  in  which  it  is  to  be  enforced,  other 
courts  have  then  no  jurisdiction  to  award  damages  there- 
under." Prior  to  1910,  section  16  of  the  Act  provided 
that  suits  to  enforce  the  orders  of  the  Commission  might 
be  filed  in  the  federal  courts.  The  state  courts,  there- 
fore, had  no  jurisdiction  of  such  claims.'^     One  of  the 

73.  Carlisle  v.  Missouri  Pac.  Ry.  facturers'  Ass'n,  91  C.  C.  A.  51, 
Co.,  168  Mo.  fi52,  68  S.  W.  898;  165  Fed.  13;  Northern  Pac.  R.  Co. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Moore.  y  Pacific  Coast  Lumber  Manufa-^- 
98  Tex.  302,  4. Ann.  Cas.  770,  83  S.  ^^^^^^,  ^^^.^^  g^  (.  ^  ^  39^  ^gg 
W.  362. 

74.  United  States.  Pennsylvania 
R.   Co.   V.  Puritan   Coal   Min.  Co., 
237   U.    S.    121,    59   L.   Ed.    867,   35 
Sup.  Ct.  484:  Union  Pac.  R.  Co.  v.       ^^"'nk  R.  Co.   of  Canada,  20  Cal 
Oregon-Washington  Lumber  Manu-      App.  349,  129  Pac.  290. 


Fed.  1;  Sheldon  v.  Wabash  R.  Co., 
105  Fed.  785. 

California.     Olcovitch    v.   Grand 


§  302] 


Damages  under  Commerce  Act. 


523 


aineiidnHMits,  ))ass«'(l  as  a  pai't  of  tln^  Mann-Elkins  Act 
of  1910,  provides  tliat  the  coiii})laiiiarit,  iu  his  suit  to 
enforce  an  order  of  the  Commission  for  damages,  may 
file  his  suit  in  any  state  court  of  general  jurisdiction 
having  jurisdiction  of  the  parties. 

§  302.  Complaints  for  Damages  before  Commission 
must  be  Filed  within  Two  Yeajrs.  Before  the  anieiidmeiit 
of  11)06  tlie  Interstate  Commerce  Act  contained  no  pro- 
vision limiting  the  time  within  which  proceedings  before 
the  Commission  or  actions  in  court  for  a  violation  of  the 
Act  should  be  instituted.  The  statutes  of  limitations  of 
the  states,  where  an  action  was  prosecuted,  therefore, 
controlled  in  the  absence  of  a  federal  statute  of  limita- 
tion."^ But  section  16  of  the  Act,  as  amended  iu  1906, 
provides  that  all  complaints  for  the  recovery  of  dama- 
ges before  the  Commission  shall  be  filed  within  two 
years  from  the  time  the  cause  of  action  accrued,  and 
not  after,  and  a  petition  for  the  payment  of  money 
shall  be  iiled  in  court  within  one  year  from  the  date  of 
the  order,  and  not  after.'"    A  cause  of  action  for  the  re- 


Georgia.  Western  &  A.  R.  Co.  v. 
White  Provision  Co.,  142  Ga.  246, 
82  S.  E.  644. 

Louisiana.  Copp  v.  Louisville  & 
N.  R.  Co.,  43  La.  Ann.  511,  12  L. 
R.  A.  725,  26  Ann.  St.  Rep.  198,  9 
So.  441. 

Nebraska.*  Fitzgerald  v.  Fitz- 
gerald &  IMallory  Const.  Co.,  41 
Neb.  374,  59   N.  W.  838. 

West  Virginia.  Robinson  v.  Bal- 
timore &  O.  R.  Co.,  64  W.  Va.  403, 
63  S.  E.  323. 

Wisconsin.  Bichlmeir  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co., 
159  Wis.  404,  150  N.  W.  508;  Sig- 
gins  V.  Chicago  &  N.  W.  R.  Co.,  153 
Wis.  122,  140  N.  W.  1128. 

75.  O'Sullivan  v.  Felix,  233 
U.  S.  318,  58  L.  Ed.  980,  34  Sup.  Ct. 
596;  McClaine  v.  Rankin,  197  U. 
S.  154,  49  L.  Ed.  702,  25  Sup.  Ct. 
410,   3    Ann.   Cas.    500:      Brady   v. 


Daly,  175  U.  S.  148,  44  L.  Ed.  109, 
20  Sup.  Ct.  62;  Campbell  v.  City  of 
Haverhill,  155  U.  S.  610,  39  L.  Ed. 
280,  15  Sap.  Ct.  217;  Michigan 
Ins.  Bank  v.  Eldred,  130  U.  S.  693, 
32  L.  Ed.  1080,  9  Sup.  Ct.  690; 
Ratican  v.  Terminal  R.  R.  Ass'n  of 
St.  Louis,  114  Fed.  666;  Murray 
v.  Chicago  &  N.  W.  Ry.  Co.,  35 
C.  C.  A.  62,  92  Fed.  868;  Copp  v. 
Louisville  &  N.  Ry.  Co.,  50  Fed. 
164. 

76.  Meeker  v.  Lehigh  Valley  R. 
Co.,  236  U.  S.  412,  59  L.  Ed.  644. 
35  Sup.  Ct.  328,  Ann.  Cas.  1916B 
691,  in  which  the  court  said: 
"Whether  the  claims  were  barred 
in  whole  or  in  part  by  some  ap- 
plicable statute  is  one  of  the 
questions  which  the  record  pre- 
sents, and  to  dispose  of  it  we  must 
notice  three  statutes  upon  which 
the  defendant  relies.    One  of  these 


524 


Duties  to  Interstate  Shippers. 


[§  302 


covery  of  damages  for  unreasonable  charges  under  the 
Act  to  Regulate  Commerce  accrues  not  from  the  date  a 
shipment  was  received  or  delivered  b}^  the  carrier,  but 
from  the  date  the  freight  charges  ivere  actually  paidj'^^ 
The  filing  of  an  informal  complaint  before  the  Commis- 
sion covering  a  particular  shipment  is  sufficient  to  inter- 
rupt the  running  of  the  statute  even  though  the  formal 
complaint  upon  which  an  order  is  subsequently  based,  is 
not  filed  for  more  than  two  years  after  the  delivery  of 


is  Rev.  Stat.,  Sec.  1047,  which 
places  a  limitation  of  five  years 
upon  any  'suit  or  prosecution  for 
any  penalty  or  forfeiture,  pecuni- 
ary or  otherwise,  accruing  undor 
the  laws  of  the  United  States.'  The 
words  'penalty  or  forfeiture'  in 
this  section  refer  to  something 
imposed  in  a  punitive  way  for  an 
infraction  of  a  public  law,  and  do 
not  include  a  liability  imposed  for 
the  purpose  of  redressing  a  private 
injury,  even  though  the  wrongful 
act  be  a  public  offense  and  punish- 
able as  such.  Here  the  liability 
sought  to  be  enforced  was  not 
punitive  but  strictly  remedial,  as 
is  shown  by  sections  8,  9,  14  and 
16  of  the  Act  to  Regulate  Com- 
merce. So  sec.  1047  was  not  ap- 
plicable. Chattanooga  Foundry  v. 
Atlanta,  203  U.  S.  390,  397;  O'Sul- 
livan  V.  Felix,  233  U.  S.  318;  Hunt- 
ington V.  Attrill,  146  U.  S.  657,  666- 
669;  Brady  v.  Daly,  175  U.  S.  148. 
Next  in  order  is  a  Pennsylvania 
statute  containing  a  limitation  of 
six  years.  2  Stewart's  Purdon's 
Digest,  13th  ed.  2282.  It  could  ap- 
ply only  in  the  absence  of  a  con- 
trolling Federal  statute.  Rev.  Stat, 
sec.  721;  Campbell  v.  Haverhill, 
155  U.  S.  610;  McClaine  v.  Rankin, 
197  U.  S.  154,  158;  O'Sullivan  v. 
Felix,  supra.  Such  a  statute  was 
adopted  and  put  in  force  before 
any  part  of  either  claim  fell  with- 


in the  bar  of  the  local  limitation. 
By  the  act  of  June  29,  906,  c.  3591, 
34  Stat.  584,  590,  Congress  amend 
eil  sec.  16  of  the  Act  to  Regulate 
Commerce  by  incorporating  there- 
in the  following  limitations:  'All 
complaints  for  the  recovery  of 
damages  shall  be  filed  with  the 
Corhmission  within  two  years  from 
the  time  the  cause  of  action  ac- 
crues, and  not  after,  and  a  petition 
for  the  enforcement  of  an  ord^r 
for  the  payment  of  money  shall  be 
filed  in  the  Circuit  Court  within 
one  year  from  the  date  of  the 
order,  and  not  after:  Provided, 
that  claims  accrued  prior  to  the 
passage  of  this  Act  may  be  pre- 
sented within  one  year.'  The 
words  of  the  proviso  make  it  cer- 
tain that  the  amendment  was  to 
reach  claims  already  accrued  as 
well  as  those  thereafter  accruing. 
And  while  there  doubtless  was  no 
purpose  to  revive  claims  then 
barred  by  local  statutes,  it  is  evi- 
dent that  Congress  intended  to 
take  all  other  claims  out  of  the 
operation  of  the  varying  laws  of 
the  several  States  and  subject 
them  to  limitations  of  its  own  cre- 
ation which  would  operate  alike 
in  all  the  States." 

76a.     United  States  v.  Interstate 

Commerce  Commission,  U.  S. 

,  62  L.  Ed.  ,  Sup.  Ct. 

,  decided  April  29,  1918. 


§  302]  Damages  under  Commerce  Act.  525 

the  shipment/^  But  tlie  iiling  of  a  complaint  by  volun- 
tary association  of  lumber  manufacturers  does  not  inter- 
rupt the  running  of  the  statute  as  to  those  members  not 
named  in  the  complaint/^ 

A  shipper  cannot  take  advantage  of  proceedings  of 
other  sliippers  for  reparation  so  as  to  prevent  the  run- 
ning of  the  statute  against  ]iim/°  "But  while  every 
person,"  said  the  court  in  the  last  case  cited,  "who 
liad  paid  the  rate  could  take  advantage  of  the  finding 
that  the  evidence  was  unreasonable,  he  was  obliged  to 
assert  his  claim  within  the  time  fixed  by  law.  When 
the  overcharge  was  collected  a  cause  of  action  at  once 
arose  and  the  shipper  at  once  had  the  right  to  file  a 
complaint  or  to  intervene  in  proceedings  instituted  by 
others.  If  he  failed  to  take  either  of  those  steps  and 
there  was  a  finding  of  unreasonableness  in  the  proceed- 
ings begun  by  others,  he  could,  if  in  time,  present  his 
claim,  and  wait  the  result  of  the  litigation  over  the 
validity  of  any  order  made  at  the  instance  of  those 
parties.  If  it  was  ultimately  sustained  by  the  court  as 
valid  he  would  then  be  in  position  to  obtain  reparation 
from  the  Commission — or  a  judgment  from  a  court  of 
competent  jurisdiction,  on  a  claim  that  had  been  sea- 
sonably presented.  But  neither  proceedings  begun  by 
other  shippers,  nor  findings  of  unreasonableness  and 
orders  issued  thereon  by  the  Commission,  would  save 
the  rights  of  those  who  disregarded  the  requirements  of 
the  Hepburn  Amendment,  that,  'all  complaints  for  the 
recovery  of  damages  shall  be  filed  with  the  Commission 
within  two  years  from  the  time  the  cause  of  action  ac- 
cures,  and  not  after,  and  a  petition  for  the  enforcement 
of  an  order  for  the  payment  of  money  shall  be  filed  in 
the  Circuit  Court  within  one  year  from  the  date  of  the 
order,  and  not  after;  provided,  that  claims  accrued  prior 
to  the  passage  of  this  act  may  be  presented  within  one 
year.'    34  Stat.  586.    In  the  present  case  the  overcharges 

77.  International  Agr.  Corpo-  tal  Freight  Bureau,  27  I.  C.  C.  32. 
ration  v.  Louisville  &  N.  R.  Co.,  29  79.  Phillips  &  Co.  v.  Grand 
I.  C.  C.  391.                                                Trunk   Western  R.  Co.,  236   U.   S. 

78.  Michigan  Hardwood  Manu-  662,  59  L.  Ed.  774,  35  Sup.  Ct.  444. 
facturers  Ass'n  v.   Transcontinen- 


526  Duties  to  Interstate  Shippers.  [§  302 

were  made  and  paid  prior  to  August,  1904.  The  present 
suit  was  brought  May  9,  1909, — less  than  two  years  after 
the  validity  of  the  Commission's  order  was  sustained 
by  the  Supreme  Court, — but,  more  than  one  year  after 
the  passage  of  the  Hepburn  Amendment,  and  more  than 
four  years  after  the  plaintiff's  cause  of  action  arose." 
A  claim  must  therefore  be  filed  with  the  Commission 
within  two  years  by  some  person  entitled  either  in  law 
or  in  equity  to  prosecute  and  recover  on  account  of 
that  claim.^° 

§  303.  Assignability  of  Claims  for  Damages  under 
the  Interstate  Commerce  Act.  In  Edmunds  v.  Illinois 
Cent.  R.  Co.,"  the  court  lield  that  claims  for  damages 
under  the  provisions  of  the  Interstate  Commerce  Act 
constituted  property  rights  which  might  be  assigned  and 
that  suits  therefor  were  maintainable  by  the  consignee; 
but,  in  a  conference  ruling,^^  the  Commission  held  that 
in  awarding  reparation  it  will  recognize  an  assignment 
by  a  consignor  to  a  consignee  or  by  a  consignee  to  a 
consignor,  but  will  not  recognize  an  assignment  to  a 
stranger  to  the  transportation  records. 

§  304.  Allowance  of  Attorney's  Fees  for  Services 
in  Reparation  Cases  Before  Commission  not  Permitted. 
When  a  person  recovers  damages  against  a  carrier  for 
a  violation  of  any  of  the  provisions  of  the  Interstate 
Commerce  Act,  it  is  provided  in  Section  8  that,  in  ad- 
dition thereto,  the  carrier  is  liable  for  a  reasonable 
counsel  or  attorney's  fee  to  be  fixed  by  the  court  in  every 
case  of  a  recovery,  which  shall  be  taxed  and  collected 
as  a  part  of  the  costs  in  the  case.  Section  16,  relating 
to  actions  to  enforce  claims  for  damages  after  the  Com- 
mission has  acted  thereon,  provides  that  if  the  petitioner 
shall  finally  prevail,  he  shall  be  allowed  a  reasonable 
attorney's  fee  to  be  taxed  and  collected  as  a  part  of  the 
costs  of  the  suit.  These  provisions  contemplate  that  only 
when  the  damages  are  recovered  by  suit  in  a  court  that 

80.    Missouri  &  Kansas  Sliippers'  81.    80  Fed.  78. 

Ass'n  V.  Atchison,  T.  &  S.  F.  Ry.  82.    Conference  Rule  No.  363. 

Co.,  13  I.  C.  C.  411. 


<§>  304]  Damages  under  Commerce  Act.  527 

a  foo  is  to  be  allowed.  If,  Ihererore,  a  carrier  complies 
with  an  order  of  the  Commission  regulating  damages 
before  theclaiinant  ])roceeds  to  enforce  tl^e  order  by  an 
action  in  court,  an  attorney's  fee  cannot  be  taxed  as  a 
part  of  the  costs/''  The  provision  allowing  an  attorney's 
fee  does  not  apply  to  actions  by  shippers  against  an 
initial  carrier  under  the  Carmack  amendment  because 
the  cause  of  action  is  not  a  violation  of  the  act  but  the 
loss  or  damage  to  the  property/* 

83.    Meeker  v.  Lehigh  Valley  R.  84.    Atlantic  Coast  Line  R.  Co.  v. 

Co..  236  U.  S.  412,  59  L.  Ed.  644,  Riverside  Mills,  219  U.  S.   186,  55 

35  Sup.  Ct.   328,  Ann.  Cas.   1916B  L    Ed.  167,  ;U  Sup.  Ct.  164,  31  L. 

691.  R.  A.    (N.   S.)    7. 


CHAPTER  XV 

Liabilities  for  Loss  and  Damages  to  Interstate  Ship- 
ments—Carmack    Amendment. 

Sec.  305.  Initial  Carriers  Liable  for  Loss  and  Damage  to  Property 
IMoving   in    Interstate   Commerce. 

Sec.  306.     Constitutionality  and  Validity  of  tht  Carmack  Amendment. 

Sec.  307.  Law  Governing  Duties  of  Carriers  for  Loss  or  Damage  to 
Interstate  Shipments  Prior  to  1906. 

Sec.  308.  Purpose  of  Congress  in  the  Enactment  of  the  Carmack 
Amendment. 

Sec.  309.  Stipulations  Exempting  Initial  Carrier  from  Liability  for 
Loss  and  Damage  on  Connecting  Lines  Invalid. 

Sec.  310.  All  State  Laws  and  Rules  Regulating  Liabilities  for  Loss 
and    Damage,    Superseded    as   to    Interstate    Shipments. 

Sec.  311.  Decisions  of  Federal  Courts  Control  in  Construing  Carmack 
Amendment. 

Sec.  312.  State  Courts  may  Enforce  Provisions  of  Carmack  Amend- 
ment and   Award   D  amages  Thereunder. 

Sec.  313.  Actions  Brought  in  State  Courts  under  Carmack  Amend- 
ments not  Removable,  When. 

Sec.  314.  Initial  Carrier  may  not  be  Sued  in  Domicile  of  Terminal 
Carrier. 

Sec.  315.  Receipt  from  Shipper  of  Money  Paid  by  Initial  Carrier  Bind- 
ing upon  Connecting  Carrier  in  Absence  of  Fraud. 

Sec.  316.  Recovery  Against  Initial  Carrier  Bars  an  Action  Against 
Connecting  Carriers. 

§  305.  Initial  Carriers  Liable  for  Loss  and  Dama- 
ge to  Property  Moving  in  Interstate  Commerce.  In 
1906  Congress  passed  an  amendment  to  section  20  of  the 
Act  to  Regulate  Commerce  which  is  popularly  known  as 
the  Carmack  amendment.^  It  provides  that  any  com- 
mon carrier,  railroad  or  transportation  company  receiv- 
ing property  for  transportation  from  a  point  in  one 
state  to  a  point  in  another  state,  shall  issue  a  receipt 
or  a  bill  of  lading  therefor  and  shall  be  liable  to  the 
lawful  holder  thereof  for  any  loss,  damage  or  injury  to 
such  property  caused  by  it  or  by  any  common  carrier, 

1.    Act  of  .Tune  29,  1906,  34  Stat.       at  L.  593.     See  Section  69,  supra. 

(528) 


§  305]         Liabilities  for  Loss  and  Damages. 


529 


railroad,  or  transportation  company  to  which  sucIl  prop- 
erty may  be  delivered  or  over  whose  line  or  lines  such 
property  may  pass  and  that  no  contract,  receipt,  rule 
or  regulation  shall  exempt  such  comi)any  from  the 
liability  imposed  by  the  statute.^ 

The  significant  and  dominating  features  of  the 
Carmack  amendment  as  originally  enacted  were:  First. 
It  affirmatively  required  the  initial  carrier  to  issue  a 
receipt  or  bill  of  lading  when  it  received  property  for 
transportation  from  a  point  in  one  state  to  a  point  in 
another.^  Second.  Such  initial  carrier  is  made  liable 
to  the  lawful  holder  liiereof  for  any  loss,  damage  or 
injury  to  such  property  caused  by   it.*     Third.     It  is 


2.  The  changes  made  in  this 
amendment  by  the  first  and  second 
Cummins  amendment  should  be 
carefully  noted.  Section  317,  injra. 

3.  United  States.  Boston  &  M.  R. 
Co.  V.  Hooker,  233  U.  S.  97,  58  L. 
Ed.  868,  34  Sup.  Ct.  526.  L.  R.  A. 
1915B  450,  Ann.  Cas.  1915D  593. 

Illinois.  Looney  v.  Oregon  Short 
Line  R.  Co.,  271  111.  538,  111  N.  E. 
509. 

Indiana.     Chesapeake  &  O.   Ry. 

Co.  of  Indiana  v.  Jordan, Ind. 

App.  ,   114  N.  E.  461. 

Massachusetts.  Aradalou  v.  New 
York,  N.  H.  &  H.  R.  Co.,  225  Mass. 
235,  114  N.  E.  297. 

Missouri.     Bowles  v.  Quincy.  0. 

&  K.  C.  R.  Co., Mo   App. , 

187  S.  W.  131;  Keithley  v.  Lusk, 
190  Mo.  App.  458,  177  S.  W.  756; 
Kent  V.  Chicago,  B.  &  Q.  R.  Co.. 
189  Mo.  App.  424,  176  S.  W.  1105: 
Morrison  Grain  Co.  v.  Missouri 
Pac.  R.  Co.,  182  Mo.  App.  339,  170 
S.  W.  404. 

New  Jersey.  International  Watch 
Co.  V.  Delaware,  L.  &  W.  R.  Co..  SO 
N.  J.  L.  553,  78  Atl.  49. 

Wisconsin.  Aton  Piano  Co.  v. 
Chicago.  M.  &  St.  P.  Co.,  152  Wis. 
156.  139  N.  W.  743. 


"By  this  legislation,  the  carrier 
is  required  to  have  a  written  ship- 
ping contract  and  cannot  ship 
without  one."  Kent  v.  Chicago,  B. 
■4  Q.  R.  Co.,  supra. 

4.  United  States.  Cincinnati. 
N.  O.  &  T.  P.  R.  Co.  V.  Rankin,  241 
U.  S.  319,  60  L.  Ed.  1022,  36  Sup 
Ct.  555,  L.  R.  A.  1917A  265;  South- 
ern R.  Co.  V.  Prescott,  240  U.  S. 
632,  60  L.  Ed.  836,  36  Sup.  Ct.  469; 
Southern  Exp.  Co.  v.  Byers,  240  U. 
S.  612,  60  L.  Ed.  825,  36  Sup.  Ct. 
410,  L.  R.  A.  1917A  197;  Clevelan'\ 
C,  C.  &  St.  L.  R.  Co.  V.  Dettlebach, 
2.'39  U.  S.  588,  60  L.  Ed.  453.  36  Sip. 
Ct.  177;  Norfolk  &  W.  R.  Co.  v. 
Dixie  Tobacco  Co..  226  U.  S.  593, 
57  L  Ed.  980,  33  Sup.  Ct.  609; 
Kansas  City  Southern  R.  Co.  v. 
Carl,  227  U.  S.  639.  57  L.  Ed.  683. 
33  Sup.  Ct.  391:  Wells.  Fargo  -^ 
Co.  V.  Neiman-Marcup.  227  U.  S. 
469,  57  L.  Ed.  600,  33  Sup.  Ct.  267: 
Galveston,  H.  &  S.  A.  R.  Co.  v. 
Wallace.  223  U.  S.  481,  56  L.  Ed. 
516.  32  Sup.  Ct.  205. 

Florida.  Seaboard  Air  Line  Ry. 
Co.  V.  Mullin.  70  Fla.  450,  11  N.  C. 
C  A.  1.  L.  R.  A.  1916D  982.  Ann. 
Cas.  191SA  576,  70  So.  467. 


1    I'onli-ul    I'HiTicr.s    31 


530 


Duties  to  Interstate  Shippers. 


[§  305 


also  made  liable  for  any  loss,  damage  or  injury  to  such 
property  by  any  common  carrier,  railroad  or  transporta- 
tion company  to  which  such  property  may  be  delivered 
or  over  whose  line  or  lines  such   property  may  pass.^ 


Georgia.  Southern  Pac.  Co.  v. 
Crenshaw,  5  Ga.  App.  675,  63  S.  E. 
865. 

•  Kentucky.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V.  Rankin,  153  Ky. 
730,   45  L.  R.   A.    (N.   S.)    529,   156 

5  W.  400. 

Maine.  Ross  v.  Maine  Cent.  R. 
Co.,  112  Me.  63,  90  Atl.  711. 

Missouri.  Cudahy  Packing  Co. 
V  Atchison,  T.  &  S.  F.  R.  Co.,  193 
Mo.  App.  572,  187  S.  W.  149; 
Bowles  V.   Quincy,  O.   &   K.   C.  R. 

Co.,    Mo.    App.    ,    187    S. 

W.   131. 

New  Jersey.     Florman   v.   Dodd 

6  Childs  Exp.  Co.,  79  N.  J.  L.  63, 
74  Atl.   446. 

New  York.  Barstow  v.  New 
York.  N.  H.  &  H.  R.  Co.,  158  N. 
Y.  App.  Div.  665,  143  N.  Y.  Supp. 
983;  Shultz  v.  Skaneateles  R.  Co., 
122  N.  Y.  Supp.  445. 

Oklahoma.   Missouri,  O.  &  G.  Ry. 

Co.  V.  French, Okla.  ,  152 

Pac.  591;  St.  Louis  &  S.  F.  R. 
Co.  V.  Zickafoose,  39  Okla.  302,  6 
N.  C.  C.  A.  717,  135  Pac.  406. 

Rhode  Island.  Glenlyon  Dye 
Works  V.  Interstate  Exp.  Co.,  36 
R.   I.   558.   91   Atl.   5. 

Texas.     Stevens  &  Russell  v.  St. 

Louis  Southwestern  Ry.  Co.,  

Tex.  Civ.  App.  .  178  S.  W.  810. 

5.  United  States.  St.  Louis,  I. 
M.  &  S.  R.  Co.  V.  Starbird,  243  U. 
S.  592.  61  L.  Ed.  917,  37  Sup.  Ct. 
462;  Pennsylvania  R.  Co.  v.  Olivit 
Bros.,  243  U.  S.  574,  61  L.  Ed.  908, 
37  Sup.  Ct.  468;  Western  Transit 
Co.  V.  A.  C.  Leslie  &  Co.,  242  U.  S. 
448,  61  L.  Ed.  423,  37  Sup.  Ct.  133; 
Chesapeake    &    0.    R.    Co.    v.    Mc- 


Laughlin, 242  U.  S.  142,  61  L.  Ed. 
207,  37  Sup.  Ct.  40;  Cincinnati,  N. 
O.  &  T.  P.  R.  Co.  V.  Rankin,  241 
U.  S.  319,  60  L.  Ed.  1022,  36  Sup. 
Ct.  555,  L.  R.  A.  1917A  265; 
Georgia.  F.  &  A.  R.  Co.  v.  Bllsh 
Milling  Co..  241  U.  S.  190,  60  L.  Ed. 
948,  36  Sup.  Ct.  541;  Northern 
Pac.  R.  Co.  V.  Wall,  241  U.  S.  87, 
60  L.  Ed.  905,  36  Sup.  Ct.  493; 
New  York,  P.  &  N.  R.  Co.  v.  Penin- 
sula Produce  Exch.  of  Maryland, 
240  U.  S.  34,  60  L.  Ed.  511.  36  Sup. 
Ct.  230,  L.  R.  A.  1917A  193;  Nor- 
folk &  W.  R.  Co.  V.  Dixie  Tobacco 
Co..  228  U.  S.  593,  57  L.  Ed.  980, 
33  Sup.  Ct.  609. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Cdnningham  Commission 
Co.,  125  Ark.  577,  188  S.  W.  1177. 

Delaware.  Bowden  v.  Philad3l- 
phia,  B.  &  W.  R.  Co.,  5  Boyce's 
(Del.)    146,   91    Atl.   209. 

Georgia.  Southern  Pac.  Co.  v. 
Crenshaw,  5  Ga.  App.  675,  63  S. 
E.  865. 

Idaho.  Barrett  v.  Northern  P. 
R.  Co..  29  Idaho  139,  157  Pac.  1016. 

Indiana.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Hayes,  181  Ind.  87,  102 
N.  E.  34.  103  N.  E.  839. 

Louisiana.  Burkenroad  Gold- 
smith Co.  V.  Illinois  Cent.  R.  Co., 
138  La.  81,  Ann.  Cas.  1917C  935, 
70   So.   44. 

Michigan.  Perkett  v.  Manistee 
&  N.  E.  R.  Co.,  175  Mich.  253,  141 
N.  W.  607;  Sturges  v.  Detroit,  G. 
H.  &  M.  R.  Co.,  166  Mich.  231,  131 
N.  W.  706. 

Missouri.     .Jones  v.  Louisville  & 

N.  R.  Co.,  Mo.  App.  ,  182 

S    W.  1064. 


§  306]         Liabilities  for  Loss  and  Damages. 


531 


Fourth.  It  affirmatively  declares  that  no  contract,  re- 
ceipt, rule  or  regulation  shall  exempt  such  common 
carrier,  railroad  or  transportation  company  from  tiic 
liability  imposed  by  the  statute." 


§  306.  Constitutionality  and  Validity  of  the  Car- 
mack  Amendment.  Soon  alter  tliu  enactment  of  the 
Carmack  amendment,  its  constitutionality  was  attacked 


Oklahoma.  St.  Louis  &  S.  F.  R 
Co.  V.  Mounts,  44  Okla.  359,  144 
Pac.  1036. 

South  Carolina.  Van  Epps  v.  At- 
lantic Coast  Line  R.  Co.,  105  S.  C. 
406,  89  S.  E.  1035. 

Texas.      Texas-Mexican    Ry.    Co. 

V    Sutherland,  Tex.  Civ.  App. 

.  189  S.  W.  983;  Patton  v.  Tex- 
as  &    P.    Ry.    Co.,   Tex.    Civ. 

App. ,  137  S.  W.  721;    Missouri, 

K.  &  T.  R.  Co.  of  Texas  v.  Stark 
Grain  Co..  103  Tex.  542,  131  S.  W. 
410. 

Washington.  Coovert  v.  Spo- 
kane, P.  &  S.  R.  Co.,  80  Wash.  87, 
141  Pac.  324. 

6.  United  States.  New  York 
Cent.  &  H.  River  R.  Co.  v.  Bea- 
ham,  242  U.  S.  148.  61  L.  Ed.  210, 
37  Sup.  Ct.  43:  Cincinnati,  N.  3. 
&  T.  P.  R.  Co.  V.  Rankin,  241  U. 
S.  319,  60  L.  Ed.  1022.  36  Sup.  Ct. 
555,  L.  R.  A.  1917 A  265;  Oregon 
Short  Line  R.  Co.  v.  Homer,  235 
U.  S.  693,  59  L.  Ed.  429,  35  Sup.  Ct. 
207;  Boston  &  M.  R.  Co.  v.  Hook- 
er, 233  U.  S.  97,  58  L.  Ed.  868,  34 
Sup.  Ct.  526,  L.  R.  A.  1915B  450. 
Ann.  Cas.  1915D  593:  Missouri,  K. 
&  T.  R.  Co.  V.  Harriman,  227  U. 
S.  657,  o7  L.  Ed.  690,  33  Sup.  Ct. 
397;  Adams  Exp.  Co.  v.  Croninger. 
226  U.  S.  491,  57  L.  Ed.  314,  33 
Sup.  Ct.  148,  44  L.  R.  A.  (N.  S.) 
257;  Galveston,  H.  &  S.  A.  R.  Co. 
V.  Wallace,  223  U.  S.  481,  56  L. 
Ed.  516,  32  Sup.  Ct.  205. 


Alabama.  Central  ot  Georgia  R. 
Co.  v.  Patterson,  12  Ala.  App.  369, 
68  So.  513;  Central  of  Georgia  R. 
Co.  V.  Broda,  190  Ala.  266,  67  So. 
4.'J7;  Atlantic  Coast  Line  R.  Co.  v. 
Ward,  4  Ala.  App.  374,  58  So.  /677. 

Delaware.  Bowden  v.  Philadel- 
phia, B.  &  W.  R.  Co.,  5  Boyce's 
(Del.)    146.  91  Atl.  209. 

Indiana.  Pittsburgh,  C,  C.  &  St. 
L.  R.  Co.  V.  Knox,  177  Ind.  344,  98 
N.  E.  295;  Pittsburgh,  C,  C.  & 
St.  L.  R.  Co.  V.  Mitchell,  175  Ind. 
196,  91  N.  E.   735,  93   N.  E.  996. 

Iowa.     Erisman  v.  Chicago,  B.  & 

Q.  R.  Co.,  Iowa  ,  163  N. 

W.  627;  Blair  &  Jackson  v.  Wells. 
Fargo  &  Co.,  155  Iowa  190,  135  N. 
W.  615. 

Michigan.  Parkett  v.  Manistee 
&  N.  E.  R.  Co.,  175  Mich.  253,  141 
N.  W.  607. 

Mississippi.  Southern  Pac.  R.  Co. 
V.  A.  .1.  Lyon  &  Co.,  107  Miss.  777, 
Ann.  Cas.  1917D  171,  66  So.  209. 

North  Carolina.     Pace  Mule  Co. 

V  Seaboard  Air  Line  R.  Co..  160  N. 
C  215,  76  S.  E.  513;  Herring  v. 
Atlantic  Coast  Line  R.  Co..  160  N. 
C.  252,  76  S.  E.  527. 

North  Dakota.  Cook  v.  North- 
ern Pac.  R.  Co.,  32  N.  D.  340,  L. 
R.  A.  1916D  345.  155  N.  W.  867. 

Oklahoma.     Haskell  v.  St.  Louis 

&  S.  F.  R.  Co., Okla.  ,  162 

Pac.  459;    St.  Louis  &  S.  P.  R.  Co. 

V  Cox,  Peery  &  Murray.  40  Okla. 
258,  1.38  Pac.  144. 


532 


Duties  to  Interstate  Shippers. 


[§  306 


in  many  state  courts  on  the  ground  that  its  provisions 
deprived  carriers  of  their  property  without  due  process 
of  law,  interfered  with  the  liberty  of  contract,  and  was 
an  improper  exercise  of  the  power  of  Congress  under 
the  commerce  clause;  but  its  validity  was  sustained  al- 
most without  dissent.^  The  constitutionality  of  the 
amendment  was  first  passed  upon  by  the  United  States 
Supreme  Court  in  Atlantic  Coast  Line  R.  Co.  v.  River- 
side Mills,^  and  the  decision  in  that  case  was  subse- 
quently affirmed  in  the  cases  cited.®  In  the  Riverside 
Mills  case,  it  was  held  that  the  statute,  in  prohibiting 
an  initial  carrier  from  exercising  its  former  right  under 
the  common  law  to  make  a  contract  limiting  its  liability 
to  its  own  line,  was  not  a  denial  of  the  liberty  of  con- 
tract secured  by  the  Fifth  amendment  to  the  national 
Constitution  for  the  reason  that  the  government  may 
deny  liberty  of  contract  to  the  extent  of  forbidding  or 
regulating  every  contract  which  is  reasonably  calculated 
to  injuriously  affect  the  public  interest. 


Tennessee.  Louisville  &  N.  R. 
Co.  V.  Hobbs,  136  Tenn.  512,  190 
S.  W.  461. 

Utah.  Shay  v.  Union  Pac.  R.  Co., 
47  Utah  252,  153  Pac.  31. 

7.  Arkansas.  St.  Louis  &  S.  F. 
R.  Co.  V.  Heyser,  95  Ark.  412,  Ann. 
Cas.  1912A   610,  130  S.  W.  562. 

Illinois.  Fry  v.  Southern  Pac. 
Co.,  247  111.  564,  93  N.  E.  906. 

Indiana.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  V.  Hayes,  181  Ind.  87,  102 
N.  E.  34,  103  N.  E.  839;  Pitts- 
burgh. C,  C.  &  St.  L.  R.  Co.  V. 
Mitchell,  175  Ind.  196,  91  N.  E. 
735,  93  N.  E.  996. 

Kentucky.  Louisville  &  N.  R.  Co. 
V.  Scott,  133  Ky.  724,  19  Ann.  Cas. 
392,  118  S.  W.  990. 

Michigan.  Sturges  v.  Detroit,  G. 
H.  &  M.  R.  Co.,  166  Mich.  231,  131 
N.  W.  706. 

Minnesota.  Ford  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  123  Minn.  87,  143  N. 
W.  2^9;    Dodge  v.  Ch'ca-o,  St.  P. 


M.  &  0.  R.  Co.,  Ill  Minn.  123,  126 
N.  W.  627. 

New  York.  Welch  Lumber  Co. 
V.  Norfolk  &  W.  R.  Co.,  137  N.  Y. 
App.  Div.  248,  121  N.  Y.  Supp.  985. 

Texas.  Missouri,  K.  &  T.  Ry. 
Co.   of  Texas  V.   Harriman   Bros., 

Tex.   Civ.   App.  ,   128   S. 

W.  932;  Galveston,  H.  &  S.  A.  Ry. 
Co.  V.  Crow  (Tex.  Civ.  App.)  117 
S.  W.  170;  Galveston,  H.  &  S.  A. 
Ry.  Co.  V.  Wallace,  (Tex.  Civ. 
App.)  117  S.  W.  169;  Galveston, 
H.  &  S.  A.  R.  Co.  v.  F.  A.  Piper 
Co.,  52  Tex.  Civ.  App.  568,  115  S. 
W.    107. 

Virginia.  Norfolk  &  W.  R.  Co. 
V.  Dixie  Tobacco  Co.,  Ill  Va.  813, 
69  8.  E.  1106. 

8.  219  U.  S.  186,  55  L.  Ed.  167, 
31  Sup.  Ct.  164,  31  L.  R.  A.  (N. 
S.)  7. 

9.  Norfolk  &  W.  R.  Co.  v.  Dixie 
Tobacco  Co.,  228  U.  S.  593,  57  L. 
Ed.  980,  33  Sup.  Ct.  609;    Galves- 


§  306]         Liabilities  for  Loss  and  Damages.  533 

Answering  tlie  contention  that  the  amendment  was 
invalid  because  beyond  tlie  power  of  Congress  under  the 
commerce  clause,  the  court  held  that  its  provisions  pre- 
scribed a  rule  under  which  interstate  commerce  might 
be  conducted,  and  was,  therefore,  within  the  range  of 
congressional  discretion  as  to  the  regulation  best  adapted 
to  remedy  a  practice  found  inefficient  or  hurtful.  The 
statute,  the  court  decided,  was  embraced  within  the 
grant  of  power  conferred  upon  Congress  to  use  all  law- 
ful means  necessary  to  the  execution  of  the  power  to 
regulate  commerce.  The  act  was  held  to  be  as  directly 
applicable  to  commerce  as  the  Safety  Appliance  Act, 
regulating  the  agencies  of  commerce,  and  the  Anti-Trust 
Act,  embracing  contracts  in  restraint  of  trade  between 
the  states.  Although  the  statute  requires  the  carrier  to 
accept  goods  destined  beyond  its  line  for  delivery  and 
to  issue  a  through  bill  of  lading,  such  compulsory  ac- 
ceptance and  liability  for  damages  done  by  others,  is 
not  a  taking  of  the  carrier's  property  without  due  pro- 
cess of  law.^**  "It  must  be  conceded,"  said  the  court  in 
the  Riverside  Mills  Case,  "that  the  effect  of  the  act  in 
respect  of  carriers  receiving  packages  in  one  State  for 
a  point  in  another  and  beyond  its  own  lines,  is  to  deny 
to  such  an  initial  carrier  the  former  right  to  make  a 
contract  limiting  liability  to  its  own  line.  This  it  is 
said  is  a  denial  of  the  liberty  of  contract  secured  by  the 
Fifth  Amendment  to  the  Constitution.  To  support  this 
counsel  cite  such  cases  as  Allgeyer  v.  Louisiana,  165  U. 
S.  589;  Lochner  v.  New  York,  198  U.  S.  45,  and  Adair 
V.  United  States,  208  U.  S.  161;  This  power  to  regulate 
is  the  right  to  prescribe  the  rules  under  which  such 
commerce  may  be  conducted.  'It  is,'  said  Chief  Justice 
Marshall,  in  Gibbons  v.  Ogden,  9  Wheat.  1,  197,  'a 
power  vested  in  Congress  as  absolutely  as  it  would  be 
in  a  single  government  having  in  its  power  as  are  found 
in  the  Constitution  of  the  United  States.'  It  is  a  power 
which  extends  to  the  regulation  of  the  appliances  and 

ton,  H.  &  S.  A.  R.  Co.  v.  Wallace,  10.    Norfolk  &  W.  R.  Co.  v.  Dixie 

223  U.  S.  481,  56  L.  Ed.  516,  32  Sup.       Tobacco  Co.,  228  U.  S.  593,  57  L. 
Ct.   205.  Ed.  980,  33  Sup.  Ct.  G09. 


534  Duties  to  Inteestate  Shippers.  [§  306 

machinery  and  agencies  by  which  such  commerce  is 
conducted.  Thus  in  Johnson  v.  Southern  Pac.  Ry.,  196 
U.  S.  1,  an  act  prescribing  safety  appliances  was  up- 
held. And  in  Interstate  Commerce  Commission  v.  Illi- 
nois Central  R.  R.  Co.,  215  U.  S.  452,  it  was  held  that 
the  equipment  of  an  interstate  railway,  including  cars 
used  for  the  transportation  of  its  own  fuel,  was  subject 
to  the  regulation  of  Congress.  In  Interstate  Commerce 
Commission  v.  C.  6c  A.  Ry.  Co.,  215  U.  S.  479,  it  was 
held  to  extend  to  the  distribution  of  coal  cars  to  the 
shipper,  so  as  to  prevent  discrimination.  In  The  Em- 
ployers' Liability  Cases,  207  U.  S.  463,  495,  power  to 
pass  an  act  which  regulated  the  relation  of  master  and 
servant,  so  as  to  impose  on  the  carrier,  while  engaged 
in  interstate  commerce,  liability  for  the  negligence  of  a 
fellow-servant,  for  which  at  common  law  there  was  no 
liability,  and  depriving  such  carrier  of  the  common-law 
defense  of  contributory  negligence  save  by  way  of  reduc- 
tion of  damages,  was  upheld.  In  Addyston  Pipe  Co. 
v.  United  States,  175  U.  S.  211,  and  Northern  Securities 
Co.  V.  United  States,  193  U.  S.  197,  it  was  held  that  this 
power  of  regulation  extended  to  and  embraced  contracts 
in  restraint  of  trade  between  the  States.  It  is  obvious, 
from  the  many  decisions  of  this  court,  that  there  is  no 
such  thing  as  absolute  freedom  of  contract.  Contracts 
which  contravene  public  policj^  cannot  be  lawfully  made 
at  all,  and  the  power  to  make  contracts  may  in  all  cases 
be  regulated  as  to  form,  evidence,  and  validity  as  to 
third  persons.  The  power  of  government  extends  to  the 
denial  of  liberty  of  contract  to  the  extent  of  forbidding 
or  regulating  every  contract  which  is  reasonably  cal- 
culated to  injuriously  affect  the  public  interests.  Un- 
doubtedly the  United  States  is  a  government  of  limited 
and  delegated  powers,  but  in  respect  of  those  powers 
which  have  been  expressly  delegated,  the  power  to  regu- 
late commerce  between  the  States  being  one  of  them,  the 
power  is  absolute  except  as  limited  by  other  provisions 
of  the  Constitution  itself.  Having  the  express  power 
to  make  rules  for  the  conduct  of  commerce  among  the 
States,  the  range  of  Congressional  discretion  as  to  the 


§    3()()  I  I.IABILITIKS    FOR    Tx)SS    AND    DAMAGES.  535 

regulation  best  adapted  to  iciiicdy  a  praqtice  loiiiid  inef- 
ficient or  hurtful,  is  a  wide  one.  If  the  regulating  act 
l)e  one  direetly  applicable  to  such  commerce,  not  obnox- 
ious to  any  other  ])rovision  of  the  ( .Constitution,  and 
reasonably  adapted  to  the  |)uri)ose  by  reason  of  iegiti- 
niate  I'elation  between  such  commerce  and  tiie  rule  pro- 
\'ided,  the  (piestion  of  power  is  foreclosed.  'The  test  of 
power,'  said  Mr.  Justice  Wliite,  speaking  for  this  comt 
in  the  Employers'  Liability  Cases,  cited  above,  'is  not 
merely  the  matter  regulated,  but  whether  the  regulation 
is  directly  one  of  interstate  commerce,  or  is  embraced 
within  the  grant  conferred  on  Congress  to  use  all  lawful 
means  necessary  and  approj^riate  to  the  execution  of  the 
power  to  regulate  commerce.'  That  a  situation  had 
come  about  which  demanded  regulation  in  the  public 
interest  was  the  judgment  of  Congress.  The  requirement 
that  carriers  who  undertook  to  engage  in  interstate 
transportation,  and  as  a  part  of  that  business  held  them- 
selves out  as  receiving  packages  destined  to  places  be- 
yond their  own  terminal,  should  be  required  as  a  con- 
dition of  continuing  in  that  traffic  to  obligate  themselves 
to  carry  to  the  point  of  destination,  using  the  lines  of 
connecting  carriers  as  their  own  agencies,  was  not  be- 
yond the  scope  of  the  power  of  regulation.  The  rule 
is  adapted  to  secure  the  rights  of  the  shi]i])er  by  secur- 
ing unity  of  transportation  with  unity  of  responsibility. 
The  regulation  is  one  which  also  facilitates  the  remedy 
of  one  who  sustains  a  loss,  by  localizing  the  responsible 
carrier.  Neither  does  the  regulation  impose  an  unrea- 
sonable burden  upon  the  receiving  carrier.  The  methods 
in  vogue,  as  the  court  may  judicially  know,  embrace 
not  only  the  voluntary  arrangement  of  through  routes 
and  rates,  but  the  collection  of  the  single  charge  made 
by  the  carrier  at  one  or  the  other  end  of  the  route.  This 
involves  frequent  and  prom])t  settlement  of  traffic  bal- 
ances. The  routing  in  a  measure  de])(Mids  ui)on  the 
certainty  and  ])i()inptness  of  such  traffic  balance  settle- 
ments, and  such  balances  have  been  regarded  as  debts 
of  a  ])referred  character  when  there  is  a  receivership. 
Again,  the  business  association  of  such  carriers  affords 
to  each  facilities  for  locating  primary  responsiliility  as 


536  Duties  to  Interstate  Shippers.  [§  306 

between  tliemselves  which  the  shipper  cannot  have. 
These  well-known  conditions  alTord  a  reasonable  security 
to  the  receiving  carrier  for  a  reimbursement  of  a  car- 
rier liability  which  should  fall  upon  one  of  the  connect- 
ing carriers  as  between  themselves." 

§  307.  Law  Governing  Duties  of  Carriers  for  Loss 
or  Damage  to  Interstate  Shipments  Prior  to  1906.  Prior 
to  the  enactment  of  the  Carmack  amendment  which 
makes  the  initial  carrier  liable  for  loss,  damage  or  in- 
jury to  through  shipments,  whether  such  losses  occur  on 
or  off  the  line  of  the  initial  carrier,  the  rule  of  the  car- 
rier's liability  for  an  interstate  shipment  of  property, 
as  enforced  in  both  federal  and  state  courts,  was  either 
that  of  the  general  common  law  as  enforced  in  the  fed- 
eral courts  throughout  the  country,"  or  that  determined 
by  the  supposed  public  policy  of  a  particular  state,^' 
or  that  prescribed  by  the  statutory  law  of  a  particular 
state.^' 

State  statutes  containing  reasonable  regulations 
which  did  not  constitute  direct  burdens  upon  interstate 
commerce,  were  held  to  be  valid  and  enforceable  even 
as  to  shipments  from  one  state  to  another.  For  example, 
a  Virginia  statute  prescribing  that  a  common  carrier 
accepting  for  transportation  property  directed  to  a 
point  of  destination  beyond  the  terminus  of  its  own 
line,  should  thereby  be  deemed  to  assume  an  obliga- 
tion for  its  safe  carriage  to  such  point  of  destination, 
unless  released  from  such  liability  by  a  contract  signed 
by  the  owner,  was  held  to  be  valid  and  applicable  to 

11.    Primrose  v.  Western  U.  Tel.  sylvania  R.  Co.,  112  U.  S.  331,  28  L. 

Co.,  154  U.  S.  1,  38  L.  Ed.  883,  14  Ed.  717,  5  Sup.  Ct.  151;    York  Mfg. 

Sup.   Ct.    1098;     New    York,    I.    E.  Co.  v.  Illinois  Cent.  R.  Co.,  3  Wall. 

&  W.  R.  Co.  V.  Estill,  147  U.  S.  591.  (u.  S.)    107,  18  L.  Ed.  170. 

39   L.    Ed.    292,    13    Sup.    Ct.    444;  ^^        Pennsylvania     R.     Co.     v. 

Liverpool   &   G.   W.    Steam   Co.   v^  ^^^  ^          ^^      ^^ 

Phenix  Ins.  Co.,  129  U.  S.  397,  32  *       ' 

L   Ed.  788,  9  Sup.  Ct.  469;  PhcEnix  ^^^'  ^^  ^"P-  ^^-  '^^^• 

Ins.  Co.  V.  Erie  &  W.  Transp.  Co.,  13.    Chicago,  M.  &  St.  P.  Ry.  Co. 

117    U.    S.    312,    29    L.    Ed.    873,    6  v.   Solan,   169  U.  S.  133,  42  L.  Ed. 

Sup.  Ct.  750,  1176;    Hart  v.  Penn-  688,  18  Sup.  Ct.  289. 


*§  307]         Liabilities  for  IjOss  and  Damages.  537 

interstate  sliii)meiits.^^  A  Alissouri  law  itiovidiii^  tliat 
a  railroad  company  issuing-  a  bill  of  ladinit?  should  be 
liable  for  any  loss  or  daniag'c  to  i)i-op('rty  caused  by  its 
own  or  the  neg'ligence  of  a  succeeding  carrier,  was  sus- 
tained even  as  to  a  shipment  from  Missouri  to  Illinois.*'^ 
But  a  (Jeorgia  act  prescribing  that  when  freight  has 
been  delivered  for  transi)ortation  by  two  or  more  car- 
riers, the  initial  carrier,  upon  the  application  of  the 
shipper,  must  furnish  information  in  writing  stating 
when,  where  and  how,  and  by  which  carrier  the  freight 
was  lost,  damaged  or  destroyed  and  the  names  of  the 
agents  by  whom  the  truth  of  such  facts  could  be  estab- 
lished, was  an  unlawful  regulation  of  interstate  com- 
merce.^"' 

With  such  diversity  of  legislative  enactments  and 
judicial  holdings,  neither  uniformity  of  obligation  nor 
of  liability  existed  as  to  interstate  and  foreign  ship- 
ments. Radical  dit^erences  existed  even  in  the  inter- 
pretation of  the  common  law  liability  of  interstate  car- 
riers as  to  loss  and  damage  to  interstate  shipments. 
Thus,  in  Hart  v.  Pennsylvania  R.  Co.,''  the  national 
Supreme  Court  held  that  a  contract  fairly  made  and  en- 
tered into  between  a  carrier  and  a  shipper  agreeing 
on  a  valuation  of  the  property  carried,  with  a  rate  of 
freight  based  on  such  valuation,  on  the  condition  that 
the  carrier  assumed  liability  only  to  the  extent  of  such 
agreed  valuation  in  case  of  loss  by  the  negligence  of 
the  carrier,  was  valid;  while  the  supreme  court  of  Penn- 
sylvania, on  the  other  hand,  in  administering  the  com- 
mon law  according  to  its  understanding  and  interpreta- 
tion of  it,  denied  the  right  of  a  carrier  to  thus  limit  its 
liability  for  loss  or  damage  resulting  from  negligence.'® 

14.  Richmond  &  A.  R.  Co.  v.  16.  Central  of  Georgia  R.  Co.  v. 
R  A.  Patterson  Tobacco  Co.,  169  Murphey,  196  U.  S.  194,  49  L.  Ed. 
U.  S.  311,  42  L.  Ed.  759,  18  Sup  444,  25  Sup.  Ct.  218,  2  Ann.  Cas. 
Ct.  335.  514. 

15.  Missouri,  K.  &  T.  Ry.  Co.  v.  17.  112  U.  S.  331,  28  L.  Ed.  717, 
McCann.  174  U.  S.  580.  43  L.  Ed.       5  Sup.  Ct.  151. 

1093,  19  Sup.  Ct.  755.  18.    Jones  v.  Lehigh  &  N.  E.  R. 

Co.,  202  Pa.  81,  51  Atl.  590. 


538 


Duties  to  Interstate  Shippers. 


[§  307 


The  American  courts  had  also  lield  that  an  initial 
carrier,  receiving  property  for  shipment  to  a  point  be- 
yond its  own  line  and  on  the  line  of  a  succeeding  car- 
rier, might  refuse  to  assume  responsibility  for  safe  car- 
riage further  than  the  terminus  of  its  own  line,  and  that 
a  provision  in  a  shipping  contract  providing  that  the 
initial  carrier  should  not  be  liable  for  loss  or  damage  not 
occurring  on  its  own  portion  of  a  through  route,  was 
valid,  and  not  a  contract  for  exemption  from  a  carrier's 
liability  as  such.^^ 

§  308.  Purpose  of  Congress  in  the  Enactment  of  the 
Carmack  Amendment.  One  of  the  reasons  which  induced 
the  passage  of  the  Carmack  amendment  was  the  desire 
of  Congress  to  obliterate  the  diversity  of  liability  of 
interstate  carriers  as  to  loss  and  damage  claims  arising 
out  of  interstate  shipments  and  to  establish  one  uniform 


19.  United  States.  Atlantic 
Coast  Line  R.  Co.  v.  Riverside 
Mills.  219  U.  S.  186,  55  L.  Ed. 
167,  31  Sup.  Ct.  164,  31  L.  R.  A 
(N.  S.)  7;  Southern  Pac.  Co.  v. 
Interstate  Commerce  Commission. 
200  U.  S.  536,  50  L.  Ed.  585,  26  Sup. 
Ct.  330;  Louisville  &  N.  R.  Co.  v. 
West  Coast  Naval  Stores  Co.,  198 
U.  S.  483,  49  L.  Ed.  1135,  25  Sup. 
Ct.  745;  Pennsylvania  R.  Co.  v. 
Jones,  155  U.  S.  333,  39  L.  Ed.  176, 
15  Sup.  Ct.  136;  Atchison,  T.  &  S. 
F.  R.  Co.  v.  Denver  &  N.  O.  R. 
Co.,  110  U.  S.  667,  28  L.  Ed.  291, 
4  Sup.  Ct.  185;  Myrick  v  Michigan 
Cent.  R.  Co.,  107  U.  S.  102,  27  L. 
Ed.  325,  1  Sup.  Ct.  425;  Ogdens- 
burg  &  L.  C.  R.  Co.  v.  Pratt,  22 
Wall.   (U.  S.)   123.  22  L.  Ed.  827. 

California.  Cavallaro  v.  Texas 
&  P.  Ry.  Co..  110  Cal.  348,  52  Am. 
St.  Rep.  94,  42  Pac.  918. 

Florida.  Savannah,  F.  &  W.  Ry. 
Co.  V.  Harris,  26  Fla.  148,  23  Am. 
St.  Rep.  551,  7  So.  544. 


Iowa.  Hartley  v.  St.  Louis,  K. 
&  N.  W.  R.  Co..  115  Iowa  612,  89 
N.  W.  88. 

Maine.  Taylor  v.  Maine  Cent. 
R.   Co.,   87   Me.   299,   32  Atl.   905. 

Maryland.  Hoffman  v.  Cumber- 
land Valley  R.  Co.,  85  Md.  391,  37 
Atl.  214. 

"Such  a  provision  is  not  a  con- 
tract for  exemption  from  a  car- 
rier's liability  as  such,  but  a  pro- 
vision making  plain  that  it  did  not 
assume  the  obligation  of  a  carrier 
beyond  its  own  line,  and  that  each 
succeeding  carrier  in  the  route  was 
but  the  agent  of  the  shipper  for  a 
continuance  of  the  transportation. 
It  is  therefore  obvious  that  at  the 
common  law  an  Initial  carrier  un- 
der such  a  state  of  facts  would  not 
be  liable  for  a  loss  through  the 
fault  of  a  connecting  carrier  to 
whom  it  had,  in  due  course,  safely 
delivered  the  goods  for  further 
trc,nsportation."  Atlantic  Coast 
Line  R.  Co.  v.  Riverside  Mills,  su- 
pra. 


'^  308]         LiABiLiTiF.s  FOR  Loss  AND  Damages.  539 

rule  of  liability  throughout  the  United  States.'"  The  aim 
was  to  esta])lisli  unity  of  responsil)ility.-^  But  tlie  over- 
slia(lovvin<^-  i)urpoHe  of  Congress  in  passing  tlie  amend- 
ment was  to  remove  the  burdensome  situation  of  the 
sliipi)ing  public  in  reference  to  interstate  siiipments 
over  routes  including  separate  lines  of  carriers.  Under 
the  common  law,  as  explained  in  the  foregoing  para- 
graph, each  carrier  participating  in  a  through  shipment, 
could  limit  its  lability  for  loss  or  damage  to  that  oc- 
curring on  its  own  lines.  Shippers  of  goods  over  two  or 
more  lines  were  therefore  compelled  to  ascertain  when 
and  where  their  property  was  lost  or  damaged  in  order 
to  recover  against  the  carrier  causing  the  damage. 

The  obstacles  in  attempting  to  determine  responsi- 
bility for  damage  to  property  shipped  over  different 
lines  were  frequently  insurmountable,  and,  in  many  in- 
stances, shippers  were  remediless.  Congress  recognized 
the  difficulties  involved  on  the  part  of  shippers  when 
goods  were  lost,  in  tracing  the  goods,  fixing  the  liability 
and  recovering  their  damage."  But,  on  the  other  hand, 
the  facilities  of  an  initial  carrier  were  found  to  be  much 
greater  than  those  of  the  shippers  for  locating  the 
goods  and  fixing  the  liability  for  loss  or  damage  and  the 
proviso  permitting  the  initial  carrier  to  recover  from 
the  carrier  on  whose  lines  the  loss  occurred  the  amount 

20.  St.  Louis,  I.  M.  &  S.  R.  Co.  Blish   Mining  Co..   241   U.    S.   190, 
V.    Starbird,   243   U.   S.   592,   61    L.  60  L.  Ed.  948,  36  Sup.  Ct.  541. 
Ed.   917,  37   Sup.   Ct.   462;     South-  22.     Gejrgia.     Southern  Ry.  Co. 
ern  R.  Co.  v.  Prescott,   240   U.  S.  v    Bennett.  17  Ga.  App.  162,  86  S. 
632,  60  L.  Ed.  836,  36  Sup.  Ct.  469;  E.  418. 

Northern  Pac.  R.  Co.  v.  WaU,  241  Illinois.      Looney      v.      Oregon 

U.  S.  87.  60  L.  Ed.  905,  36  Sup.  Ct.  Short  Line  R.  Co.,  271  111.  538.  Ill 

493:    New  York,  P.  &  N.  R.  Co.  v.  N.  E.  509. 

Peninsula  Produce  Exch.  of  Mary-  Missouri.      Donovan      v.     Wells, 

land.  240  U.  S.  34,  60  L.  Ed.  511.  Fargo  &  Co.,  265  Mo.  291.  177  S. 

36  Sup.  Ct.  230,  L.  R.  A.  1917A  193;  W.  839. 

Atlantic  Coast  Line  R.  Co.  v.  River-  New  Jersey.     Spada  v.  Pennsyl- 

side  Mills.  219  U.  S.  186,  55  L.  Ed.  vania  R.  Co..  86   N.  J.  L.   187,  92 

167,   31   Sup.   Ct.   164,   31   L.   R.   A.  Atl.  379. 

(N.  S.)   7.  Texas.    Pecos  &  N.  T.  Ry.  Co.  v. 

21.  Georgia.   F.   &   A.   R.    Co.    v.       Meyer.  Tex.  Civ    App.  155.  S. 

W.  309. 


540 


Duties  to  Interstate  Shippers. 


[§  308 


of  damages  paid  to  the  owner  of  the  property  adequately 
protected  the  initial  carrier."  The  object  of  the  stat- 
ute was  to  require  the  initial  carrier  receiving  freight 
for  transportation  in  interstate  commerce  to  obligate  it- 
self to  carry  to  the  point  of  destination,  using  the  lines 
of  the  connecting  carriers  as  its  agents,  thus  securing 
for  the  shippers  unity  of  transportation  and  responsi- 
bility.-'' 

§  309.  Stipulations  Exempting  Initial  Carrier  from 
Liability  for  Loss  and  Damage  on  Connecting  Lines  In- 
valid. It  necessarily  follows  from  the  language  of  the 
Carmack  amendment  that  all  stipulations  in  bills  of 
lading  for  through  shipments  exempting  the  initial  car- 
rier from  liability  for  loss  or  damage  not  occurring  on 
its  own  line,  are  invalid  and  cannot  be  enforced,  as  the 
statute  conclusively  treats  all  the  connecting  carriers 
as  the  agents  of  the  initial  carrier  for  whose  act  it  is 
liable.^^ 


23.  When  the  Carmack  amend- 
ment was  reported  by  a  conference 
committee.  Representative  Rich- 
ardson explained  its  purpose  as 
follows:  "One  of  the  great  com- 
plaints of  the  railroads  has  been 
— r^nd,  I  think,  a  reasonable,  just 
and  fair  complaint — that  when  a 
man  made  a  shipment,  say.  from 
Washington,  for  instance,  to  San 
Francisco,  Cal.,  and  his  shipment 
was  lost  in  some  way.  the  citizen 
had  to  go  thousands  of  miles,  prob- 
ably, to  institute  his  suit.  The  re- 
sult was  that  he  had  to  settle  his 
damages  at  what  he  could  get. 
What  have  we  done?  We  have 
made  the  initial  carrier,  the  car- 
rier that  takep  and  receives  the 
shipment,  responsible  for  the  loss 
of  the  article  in  the  way  of  dam- 
ages. We  save  the  shipper  from 
going  to  California  or  some  dis- 
tant place  to  institute  his  suit. 
Why?     Th3   reasons   for   inducing 


us  to  do  that  were  that  the  initial 
carrier  haa  a  through  route  con- 
nection with  the  secondary  car- 
rier, on  whose  route  the  loss  oc- 
curred, and  a  settlement  between 
them  will  be  an  easy  matter,  while 
the  shipper  would  be  at  heavy  ex- 
pense in  the  institution  of  a  suit. 
If  a  judgment  is  obtained  against 
the  initial  carrier,  no  doubt  ex- 
ists but  that  the  secondary  carrier 
would  pay  it  at  once.  Why?  Be- 
cause the  arrangement,  the  con- 
cert, the  cooperation,  the  through 
route  courtesies  between  them 
would  be  broken  up  if  prompt  pay- 
ment were  not  made.  We  have 
done  that  in  conference." 

24.  St.  Louis  Southwestern  R. 
Co.  of  Texas  v.  Alexander,  227  U. 
S.  218,  57  L.  Ed.  486,  33  Sup.  Ct. 
245.  Ann.  Cas.  1915B  77. 

25.  United  States.  Smeltzer  v. 
St.  Louis  &  S.  F.  R.  Co.,  158  Fed. 
649. 


§  310]         Liabilities  for  IjOss  and  Damages. 


541 


§  310.  All  State  Laws  and  Rules  Regulating  Lia- 
bilities for  Loss  and  Damage,  Superseded  as  to  Inter- 
state Shipments.  Tlie  suhjind  matter  of  the  lial^ilities  of 
t!Oinnioii  carriers  for  loss  or  injury  to  property  trans- 
ported in  interstate  commerce  belongs  to  that  class  of 
regulations  which  the  state  may  control  in  the  absence 
of  action  by  Congress.  By  enactment  of  tlie  Carmack 
amendment,  Congress  legislated  upon  the  subject,  and 
state  laws  and  rules  therefore,  in  so  far  as  they  attempt 
to  and  do  cover  the  same  field,  have  been  superseded.-^ 


Alabama.  Central  of  Georgia  R. 
Co.  V.  Broda,  190  Ala.  266,  67  So. 
437;  Atlantic  Coast  Line  R.  Co. 
V.  Ward.  4  Ala.  App.  374,  58  So. 
677;  Central  of  Georgia  R.  Co.  v. 
Sims.  169  Ala.  295,  53  So.  826. 

Arkansas.  United  States  Exp. 
Co.  V.  Cohn,  108  Ark.  115,  157  S. 
W.  144;  Southern  Exp.  Co.  v. 
Meyer,  94  Ark.  103,  125  S.  W.  642. 

Indiana.  Pittsburgh,  C,  C.  &  S':. 
L.  R.  Co.  V.  Knox,  177  Ind.  344.  98 
N.  E.  295. 

Iowa.  Glassman  v.  Chicago,  R. 
I  &  P.  R.  Co.,  166  Iowa  254,  147  N. 
W.  757;  Cramer  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  153  Iowa,  103,  133  N. 
W.  387. 

Louisiana.  Burkenroad  Gold- 
smith Co.  V.  Illinois  Cent.  R.  Co.. 
138  La.  81,  Ann.  Cas.  1917C  935. 
70  So.  44. 

Michigan.  Perkett  v.  Manistee  & 
N.  E.  R.  Co.,  175  Mich.  253,  141 
N.  W.  607. 

Mississippi.  Southern  Pac.  R. 
Co.  V.  A.  .1.  Lyon  &  Co..  107  Miss. 
777.  Ann.  Cas.  1917D  171,  66  So. 
209. 

Minnesota.  Dodge  v.  Chicago. 
St.  P.,  M.  &  O.  R.  Co.,  Ill  Minn. 
123.  126  N.  W.  627. 

Rhode  Island.  Glenlyon  Dye 
Works  V.  Interstate  Exp.  Co.,  36 
R.  I.  5,^8,  91   Atl.  5. 

Texas.  I^Iissouri.  K.  &  T.  Ry.  Co. 
of  Texas  v.  Hailey,  Tex.  Civ. 


App.  ,  156  S.  W.  1119;  Chica- 
go, R.  I.  &  G.  Ry.  Co.  V.  Scott, 

Tex.  Civ.  App.  ,  156  S.  W.  294. 

Virginia.  Old  Dominion  S.  S. 
Co.  V.  Flanary  &  Co.,  Ill  Va.  816, 
69  S.  E.  1107. 

26.  United  States.  Missouri,  K. 
&  T.  R.  Co.  of  Texas  v.  Ward,  244 
U.  S.  383,  61  L.  Ed.  1213,  37  Sup. 
Ct.  617;  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Starbird,  243  U.  S.  592,  Gl 
L.  Ed.  917,  37  Sup.  Ct.  462;  West- 
ern Transit  Co.  v.  A.  C.  Leslie 
&  Co.,  242  U.  S.  448,  61  L.  Ed.  423, 
37  Sup.  Ct.  133;  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  V.  Rankin,  241  U. 
S.  319,  60  L.  Ed.  1022,  36  Sup.  Ct. 
555,  L.  R.  A.  1917A  265:  Georgia. 
F.  &  A.  R.  Co.  V  Blish  Milling  Co., 
241  U.  S.  190.  60  L.  Ed.  948.  ."6 
Sup.  Ct.  541;  Northern  Pac.  R.  Co. 
V  Wall.  241  U.  S.  87,  60  L.  Ed. 
905.  36  Sup.  Sup.  Ct.  493;  South- 
ern Ry.  Co.  V.  Prescott,  240  U.  S. 
632,  60  L.  Ed.  836.  36  Sup.  Ct.  469: 
Southern  Exp.  Co.  v.  Byers,  240  U. 
S.  612,  60  L.  Ed.  825,  36  Sup.  Ct. 
410;  L.  R.  A.  1917A  197;  Cleve- 
land, C.  C.  &  St.  L.  R.  Co.  V.  Det- 
tlebach.  239  U.  S.  588,  60  L.  Ed. 
453,  36  Srp.  Ct.  177;  Charleston  & 
W.  C.  R.  Co.  V.  Varnville  Furniture 
Co.,  237  U.  S.  597,  59  L.  Ed.  1137. 
35  Sup.  Ct.  715.  Ann.  Cas.  10160 
333;  Pierce  Co.  v.  W^ells  Fargo  & 
Co.,  236  U.  S.  278.  59  L.  Ed.  576. 
35  Sup.  Ct.  351;    Missouri,  K.  &  T. 


542 


Duties  to  Interstate  Shippers. 


[§  310 


That  tlie  legislation  supersedes  all  the  regulatious  and 
policies   of  a   particular   state   upon   the    same    subject 


R.  Co.  of  Texas  v.  Harris,  234  U. 
S.  412,  58  L.  Ed.  1377,  34  Sup.  Ct. 
790,  L.  R.  A.  1915E  942;  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Moore,  233  U. 
S.  182,  58  L.  Ed.  906,  34  Sup.  Ct. 
558:  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Robinson,  233  U.  S.  173,  58  L. 
Ed.  901,  34  Sup.  Ct.  556;  Boston 
&  M.  R.  Co.  V.  Hooker,  233  U.  S. 
97,  58  L.  Ed.  868,  34  Sup.  Ct.  526, 
L.  R.  A.  1915B  450.  Ann.  Cas.  1915 
D  593;  Chicago,  R.  I.  &  P.  R.  Co. 
V  Cramer,  232  U.  S.  490,  58  L.  Ed. 
697.  34  Sup.  Ct.  383;  Barrett  v. 
New  York,  232  U.  S.  14,  58  L.  Ed. 
483,  34  Sup.  Ct.  203;  Norfolk  & 
W.  R.  Co.  V.  Dixie  Tobacco  Co., 
228  U.  S.  593,  57  L.  Ed.  980,  33 
Sup.  Ct.  609:  Kansas  City  South- 
ern R.  Co.  V.  Carl,  227  U.  S.  639, 
57  L.  Ed.  683,  33  Sup.  Ct.  391; 
Wells,  Fargo  &  Co.  v.  Neiman-Mar- 
cus  Co..  227  U.  S.  469,  57  L.  Ed. 
600,  33  Sup.  Ct.  267;  Chicago,  St. 
P.,  M.  &  O.  R.  Co.  V.  Latta,  226  U. 
S.  519,  57  L.  Ed.  328,  33  Sup.  Ct. 
155;  Chicago,  B.  &  Q.  R.  Co.  v. 
Miller,  226  U.  S.  513,  57  L.  Ed.  323. 
33  Sup.  Ct.  155;  Chicago  &  E.  I. 
R.  Co.  V.  Collins  Produce  Co.,  149 
C.  C.  A.  169,  235  Fed.  857,  14  N.  C. 
C.  A.  m. 

Alabama.  Henderson  &  Walters 
V.  Atlantic  Coast  Line  Ry.  Co..  — 

Ala.  ,  76  So.  309;    Deavors  v. 

Southern  Exp.  Co.,  Ala.  , 

76   So.  288;     Western  U.  Tel.  Co. 

V.   Smith,  Ala.   ,   75   So. 

393;  Nashville,  C.  &  St.  L.  Ry. 
Co.  V.  Abramson-Boone  Produce 
Co.,  Ala.  ,  74  So.  350. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Cunningham  Commission 
Co.,  125  Ark.  577,  188  S.  W.  1177; 
Kansas  City  &  M.  R.  Co.  v.  Oak- 
ley,  115    Ark.   20,    170   S.   W.    565; 


St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Faulkner,  111  Ark.  430,  164  S.  W. 
763. 

Georgia.     Southern    Exp.   Co.   v. 

Oliver, Ga.  App. ,  93  S.  E. 

109;  Central  of  Georgia  R.  Co. 
V.  Yesbik,  146  Ga.  769,  92  S.  E. 
527;  Morris  v.  Southern  R.  Co., 
19  Ga.  App.  495,  91  S.  E.  878;  Cin- 
cinnati, H.  &  D.  R.  Co.  V.  Quincy 
&  Rogers,  19  Ga.  App.  167,  91  S. 
E.  220;  Central  Georgia  R.  Co. 
v.  Waxelbaum  Produce  Co.,  18  Ga. 
App.  489,  89  S.  E.  635;  Nashville, 
C.  &  St.  L.  Ry.  v.  C.  V.  Truitt  Co , 
17  Ga.  App.  236,  86  S.  E.  421; 
Mitchell  &  Co.  v.  Atlantic  Coast 
Line  R.  Co.,  15  Ga.  App.  797,  84  S. 
E.  227;  Atlantic  Coast  Line  R.  Co. 
V.  Thomasville  Live  Stock  Co.,  13 
Ga.  App.  102,  78  S.  E.  1019. 

Illinois.  Shellabarger  Elevator 
Co.  v.  Illinois  Cent.  R.  Co.,  278 
111.  333;  L.  R.  A.  1917E  1011,  116 
N.  E.  170;  Pennington  v.  Grand 
Trunk  Western  R.  Co.,  277  111.  39, 
115  N.  E.  170;  Gamble-Robinson 
Commission  Co.  v.  Union  Pac.  R. 
Co.,  262  111.  400,  Ann.  Cas.  1913B 
89,  104  N.  E.  666;  Clingan  v.  Cleve- 
land, C,  C.  &  St.  L.  Ry.  Co..  184 
111.  App.  202. 

Indiana.     Chesapeake  &   O.   Ry. 

Co.  of  Indiana  v.  Jordan, Ind. 

App.  ,  114  N.  E.  461;  Cleve- 
land. C.  C.  &  St.  L.  R.  Co.  V. 
Hayes  (Ind.),  104  N.  E.  581;  Wa- 
bash R.  Co.  V.  Priddy,  179  Ind. 
483,   101   N.   E.   724. 

Iowa.    Erisman  v.  Chicago,  B.  & 

Q.  R.  Co.,  Iowa  ,  163  N. 

W.  627;    Cedar  Rapid  Fuel  Co.  v. 

Illinois    Cent.    R.    Co..    Iowa 

,  160  N.  W.  353;    Heilman  & 

Clark  v.  Chicago  &  N.  W.  R.  Co.. 
167  Iowa  313,  149  N.  W.  436. 


§  310]         TjIabilitiks  von  Loss  and  Damages. 


543 


results  from  the  general  cliaracter  of  the  statute;  for  it 
embraces  the  subject  of  the  liahilty  of  the  cai-ricr  uiidei- 


Kentucky.  Southern  Ry.  Co.  v. 
Avey,  17:5  Ky.  598,  191  S.  W.  4G0: 
Louisville  &  N.  R.  Co.  v.  Miller, 
156  Ky.  677,  50  L.  R.  A.  (N.  S.) 
819,  162  S.  W.  73;  Cincinnati,  N. 
O.  &  T.  P.  R.  Co.  V.  Rankin,  15:5 
Ky.  730,  45  L.  R.  A.  (N.  S.)  529, 
156  S.  W.  400. 

Louisiana.  National  Rice  Mill- 
ing Co.  V.  New  Orleans  &  N.  E.  R. 
Co.,  132  La.  615,  Ann.  Cas.  1914D 
1099,  61  So.  708. 

Maine.     Continental   Paper   Bag 

Co.  V.  Maine  Cent.  R.  Co., Me. 

,   99  Atl.  259. 

Massachusetts.  Aradalou  v. 
New  York,  N.  H.  &  H.  R.  Co.,  225 
Mass.   235,   114   N.   E.  297. 

Minnesota.  Victor  Produce  Co. 
V.  Western  Transit  Co.,  135  Minn. 
121,  160  N.  W.  248;  Ford  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  123  Minn. 
87,  143  N.  W.  249. 

Mississippi.  St.  Louis  &  S.  F. 
R.  Co.  V.  Woodruff  Mills,  105  Miss. 
214,  62  So.  171. 

Missouri.  Jordan  Bros.  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  Mo.  App. 

,    196    S.    W.    417;     Barton    v. 

Louisville  &   N.   R.   Co.,  Mo. 

App.    ,    196    S.    W.    379;      O'- 

Briant    v.    Pryor,    Mo.    App. 

,  195  S.  W.  759;  Foster  Lum- 
ber Co.  V.  Atchison,  T.  &  S.  F.  R. 
Co.,  270  Mo.  629,  194  S.  W.  281: 
Equity  Elevator  Co.  v.  Union  Pac. 

R.  Co.,  Mo.  App.  ,  191  S. 

W.  1067;    Collier  v.  Wabash  R.  Co., 

Mo.  App.  .  190  S.  W.  969; 

Wilson  v.  Chicago  Great  Western 

R.  Co.,  Mo.  App.  ,  190  S. 

W.  22;  Brockman  Commission  Co. 
V.  Missouri  Pac.  R.  Co.,  195  Mo. 
App.  607,  188  S.  W.  920;  Conley 
V.  Chicago,  B.  &  Q.  R.  Co.,  192  Mo. 
App.  534.  183  S.  W.  1111;    Donovan 


V  Wells,  Fargo  &  Co.,  265  Mo.  291. 
177  S.  W.  839;  Dunlap  v.  Chicago 
&  A.  R.  Co..  187  Mo.  App.  201,  l'^2 
S.  W.  1178;  Bailey  v.  Missouri 
Pac.  R.  Co.,  184  Mo.  App.  457,  171 
S.  W.  44;  Johnson  Grain  Co.  /. 
Chicago,  B.  &  Q.  R.  Co.,  177  Mo. 
App.  195,  164  S.  W.  182;  American 
Silver  Mfg.  Co.  v.  Wabash  R.  Co., 
174  Mo.  App.  184,  156  S.  W.  830. 

New  Jersey.  Olivit  Bros.  v.  Penn- 
•sylvania  R.  Co.,  88  N.  J.  L.  241,  96 
Atl.   .^82. 

New  York.    Burke  v.  Union  Pac. 

R.  Co.,  N.  Y.  App.  Div.  , 

166  N.  Y.  Supp.  100;  Lynch  v. 
New  York  Cent.  &  H.  River  R.  Co., 

89  N.  Y.  Misc.  472,  153  N.  Y.  Supp. 
633;  Barnet  v.  New  York  Cent.  & 
H.  River  R.  Co.,  167  N.  Y.  App. 
Div.  738,  153  N.  Y.  Supp.  374;  Bar- 
stow  V.  New  York,  N.  H.  &  H.  R. 
Co.,  158  N.  Y.  App.  Div.  665,  143 
N.  Y.  Supp.  983;  Schultz  v.  Skan- 
eateles  R.  Co.,  122  N.  Y.  Supp.  445. 

North  Carolina.  Davis  v.  Nor- 
folk Southern  R.  Co.,  172  N.  C-  209, 

90  S.  E.  123;  Aydlett  v.  Norfolk 
Southern  R.  Co.,  172  N.  C.  47,  89 
S.  E.  1000. 

North  Dakota.  Knapp  v.  Minne- 
apolis, St.  P.  &  S.  S.  M.  R.  Co.,  34 
N.  D.  466,  159  N.  W.  81;  Cook  v. 
Northern  Pac.  R.  Co.,  32  N.  D.  340, 
L.  R.  A.  1916D  345,  155  N.  W.  867. 

Oklahoma.     Haskel  v.   St.  Louis 

&  S.  F.  R.  Co.,  Okla.  ,  162 

Pac.    459;     St.    Louis    &    S.    F.    R. 

Co.  V.  Akard,  Okla.  ,  159 

Pac.  344;    St.  Louis  &  S.  F.  R.  Co. 

V.  Wynn, Okla. ,  153  Pac. 

1156;    Chicago,  R.  I.  &  P.  Ry.  Co. 

V.  Wynn, Okla. ,  153  Pac. 

880;  St.  Louis  &  S.  F.  R.  Co.  v. 
Cox.  Peery  &  Murray,  40  Okla.  258, 
138  Pac.  144;    St.  Louis  &  S.  F.  R. 


544  Duties  to  Interstate  Shippers.  [§  310 

a  bill  of  lading  which  he  must  issue,  aud  limits  his 
power  to  exempt  himself  by  rule,  regulation  or  contract. 
Almost  every  detail  of  the  subject  is  covered  so  com- 
pletely that  it  appears  beyond  question  that  Congress 
intended  to  take  possession  of  the  subject  and  supersede 
all  state  legislation  with  reference  to  it.^'  A  state  statute, 
for  example,  providing  that  no  contract,  rule  or  regu- 
lation shall  exempt  a  common  carrier  from  its  liability 
as  such  which  would  exist  had  no  contract,  rule  or  regu- 
lation been  made  or  entered  into,  is  not  applicable  to 
interstate  shipments  since  the  enactment  of  the  Car- 
mack  amendment. ^^  A  law  of  a  state  invalidating  con- 
tracts which  require  the  bringing  of  an  action  for  a  car- 
rier's liability  in  less  than  the  statutory  period,  is  in- 
operative as  to  shipments  governed  by  the  federal  law.^® 
A  provision  in  the  constitution  of  a  state  affecting  the 
duty  and  liability  of  a  carrier  for  loss  and  injury  to 
propert}^,  has  been   superseded   as  to  interstate   traffic 

Co.  V.  Zickafoose,  39  Okla.  302,  6       Co.  v.  Smyth,  Tex.  Civ.  App. 

N.  C.  C.  A.  717,  135  Pac.  406;    Mis-       ,   189   S.  W.  70;     Pacific  Exp. 

souri,  K.  &  T.  R.  Co.  v.  WaLston,  Co.   v.   Krower,   106   Tex.   216,   163 

37  Okla.  517,  133  Pac.  42;    St.  Louis  S.  W.  9;    Galveston,  H.  &  S.  A.  Ry. 

&  S.  F.  R.  Co.  V.  Bilby,  35  Okla.       Co.  v.  Sparks,  Tex.  Civ.  App. 

589,  130  Pac.  1089.  ,  162   S.  W.  943;        Patton  v. 

Oregon.    Stoddard  Lumber  Co.  v.       Texas  &  P.  Ry.  Co., Tex.  Civ. 

Oregon-Washington  R.  &  Nav.  Co.,       App.  ,  137  S.  W.  721. 

84  Or.  399,  165  Pac.  363.  Vermont.      Dionne   v.    American 

South  Carolina.    Van  Epps  v.  At-       Exp.   Co.,  Vt.  ,   101   Atl. 

lantic  Coast  Line  R.  Co.,  105  S.  C  209. 

406,  89  S.  E.  1035;  Spence  v.  Wisconsin.  Best  v.  Great  North- 
Southern  Ry.  Co.,  101  S.  C.  436,  85  ern  R.  Co.,  159  Wis.  429,  150  N.  W. 
S.  E.  1058.  484. 

South  Dakota.    House  v.  Chicago  27.     Adams   Exp.   Co.   v.    Cron- 

&  N.  W.  R.  Co..  30  S.  D.  321,  Ann.  inger,  226  U.  S.  491,  57  L.  Ed.  314. 

Cas.  1915C  1045,  138  N.  W.  809.  33   Sup.  Ct.   148,   44  L.   R.  A.    (N. 

Texas.     Chicago,  R.  I.  &  G.  Ry.  S.)    257. 

Co.  V.  .Jenkins. Tex.  Civ.  App.  28.  Chicago,  R.  I.  &  P.  R.  Co.  v. 

.  196  S.  W.  679;    Gulf,  C.  &  S  Cramer,  232  U.  S.  490,   58  L.  Ed. 

F.  R.  Co.  V.  Nelson,  108  Tex.  305,  697,  34  Sup.  Ct.  383. 

192  S.  W.  1056;    Andrews  v.  Rob-  29.  Missouri,  K.  &  T.  R.  Co.  v. 

erts,  Tex.  Civ.  App.  ,  192  Harriman,  227  U.  S.  657,  57  L.  Ed. 

S.  W.  569;    Atchison,  T.  &  S.  F.  Ry.  690,  33  Sup.  Ct.  397. 


<^    310]  LlABILITIEvS    FOR    LoSS    AND    DaMAGES.  545 

although  tlie  loss  occurred  within  tlip  territory  of  that 
state.'" 

The  assumption  of  federal  control  over  interstate 
shipments  by  the  Canuaek  amendment  invalidates  a 
sfate  statute  imposing  a  penalty  of  $50.00  on  carriers 
for  failure  to  ])ay  claims  within  forty  days,  in  so  far  as 
interstate  shipments  are  affected  thereby.'^  Section  9 
of  article  23  of  the  Oklahoma  constitution,  which  pre- 
scribes that  any  provision  of  any  contract  or  agreement 
stipulating  for  notice  or  demand  other  than  such  as  may 
be  provided  by  law,  as  a  condition  precedent  to  estab- 
lishing any  claim,  shall  be  null  and  void,  has  ceased  to 
be  applicable  to  bills  of  lading  or  contracts  governing 
interstate  traffic.^^  A  statutory  enactment  of  a  state 
providing  a  penalty  for  the  failure  of  a  carrier  to  trace 
property  and  inform  the  shipper  when,  where,  and  by 
which  carrier  his  property  was  lost,  damaged  or  des- 
troyed, does  not  control  as  to  interstate  shipments.^' 

In  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Starbird,'*  the  ef- 
fect of  the  Carmack  amendment  on  all  state  laws  and 
regulations  was  thus  stated:  "On  June  29,  1906,  Congress 
passed  the  so-called  Hepburn  Act  (34  Stat.  584),  by 
section  20  of  which  it  undertook  to  provide  for  the  liabili- 
ty of  carriers  in  interstate  commerce,  and  to  subject 
them,  as  to  interstate  shipments,  to  certain  obligations 
which  should  supersede  the  varying  requirements  of 
the  States  through  which  interstate  transportation  might 
be  conducted.  Tlie  construction  of  this  act  came  before 
this  court  in  Adams  Express  Company  v.  Croninger, 
226  U.  S.  491,  and  upon  full  consideration  it  was  held 
that  the  effect  of  the  Canuaek  Amendment  was  to  super- 
sede all  legislation  in  the  particular  States,  and  to  em- 
brace the  liability  of  the  carrier  in  interstate  transporta- 

30.  Chicago.  St.  P..  M.  &  O.  R.       S.  597,  59  L.  Ed.  1137,  35  Sup.  Ct. 
Co.  V.  Latta,  226  U.  S.  519.  57  L.       715,  Ann.  Cas.  1916D  333. 

Ed.  328,  33  Sup.  Ct.  155;    Chicago,  ^2.     St.  Louis  &  S.  F.  R.  Co.  v. 

B.  &  Q.  R.  Co.  V.  Miller.  226  U.  S.       ^?/-  'J  ^^'^-  T'  '''  ^^^^  ''''■ 

33.    Meetze  v.  Southern  Exp.  Co., 
513,  57  L.  Ed.  323,  33  Sup.  Ct.  155.       91  g    c   379,  74  S    E    823 

31.  Charleston  &  W.  C.  R.  Co.  34.    243  U.  S.  592,  61  L.  Ed.  917, 
V.  Varnville  Furniture  Co.,  237  U.       37  Sup.  Ct.  462. 

1    Control    Cariiers    H.j 


546  Duties  to  Ixteestate  Shippers.  [§  310 

tion.  It  was  there  said  that  almost  every  detail  of  the 
subject  had  been  completely  covered,  and  that  there 
could  be  no  rational  doubt  that  Congress  intended  to 
take  possession  of  the  subject  and  lay  down  rules  and 
regulations  upon  which  the  parties  might  rely  and  have 
their  rights  determined  by  a  uniform  rule  of  obligation. 
Among  other  things,  the  act  required  that  the  initial 
carrier  should  issue  a  receipt  or  bill  of  lading  whenever 
it  received  property  for  transportation  from  a  point  in 
one  State  to  a  point  in  another  State,  and  the  initial  car- 
rier was  made  liable,  not  only  for  the  results  of  its  own 
negligence,  but  also  for  loss,  damage  or  injury  to  the 
property  occasioned  by  any  common  carrier,  railroad 
or  transportation  company  to  which  the  property  should 
be  delivered  and  over  whose  line  or  lines  the  property 
might  pass,  and  it  was  provided  that  no  contract,  re- 
ceipt, rule  or  regulation  should  exempt  such  initial  car- 
rier from  the  liability  imposed  by  the  act.  As  the  ship- 
ment in  this  case  was  interstate,  there  can  be  no  question 
that,  since  the  decision  in  the  Croninger  Case,  supra, 
the  parties  are  held  to  the  responsibilities  imposed  by 
the  federal  law,  to  the  exclusion  of  all  other  rules  of  obli- 
gation. Since  the  Carmack  Amendment,  the  carrier  in 
this  case  is  liable  only  under  the  terms  of  that  act  of  Con- 
gress, and  the  action  against  it  to  recover  on  a  through 
bill  of  lading  for  the  negligence  of  connecting  carriers 
as  well  as  of  itself,  was  founded  on  that  Amendment. 
Atlantic  Coast  Line  R.  R.  Co.  v.  Riverside  Mills,  219 
U.  S.  186,  196.  This  principle  has  been  so  frequently 
recognized  in  the  recent  decisions  of  this  court  that  it 
is  only  necessary  to  refer  to  some  of  them.  In  Southern 
Railway  Co.  v.  Prescott,  240  U.  S.  632,  636,  639,  this 
court  said:  'As  the  shipment  was  interstate,  and  the 
bill  of  lading  was  issued  pursuant  to  the  Federal  Act, 
the  question  whether  the  contract  thus  set  forth  had 
been  discharged  was  necessarily  a  Federal  question. 
.  .  .  Viewing  the  contract  set  forth  in  the  bill  of  lading 
as  still  in  force,  the  measure  of  liability  under  it  must 
also  be  regarded  as  a  Federal  question.  As  it  has  often 
been  said,  the  statutory  provisions  manifest  the  intent 
of  Congress  that  the  obligation  of  the  carrier  with  res- 


^    31  1  ]  LlABILTTIEH    FOR    Tj«SS    AND    DaMAGES.  547 

pect  to  the  sorvices  within  tlie  purviow  of  the  statute 
shall  be  governed  by  uniform  rule  in  the  place  of  tlie 
diverse  requirements  of  state  leg'i station  and  decisions.' 
In  Southern  Elxpress  Company  v.  Byers,  240  U.  S.  612, 
614,  this  court  said:  'Manifestly  the  shipment  was  inter- 
state commerce;  and,  under  the  settled  doctrine  estab- 
lished by  our  former  opinions,  rights  and  liabilities  in 
connection  therewith  depend  upon  acts  of  Congress,  the 
bill  of  lading  and  common  law  principles  accepted  and 
enforced  bv  the  Federal  courts.'  To  the  same  effect, 
Northern  Pacific  Ry.  Co.  v.  Wall,  241  U.  S.  87,  91,  92; 
Georgia,  Florida  &  Alabama  Ry.  Co.  v.  Blish  iSIilling 
Co.,  241  U.  S.  190;  Cincinnatti,' New  Orleans  &  Texas 
Pacific  Ry.  Co.  v.  Rankin,  241  U.'  S.  319." 

§  311.  Decisions  of  Federal  Courts  Control  in  Con- 
struing Carmack  Amendment.  In  construing  and  ap- 
plying the  Carmack  amendment,  as  amended,  state 
courts  are  bound  to  follow  the  decisions  of  the  federal 
courts,  since  by  the  enactment  of  the  federal  act  Con- 
gress has  taken  complete  possession  of  the  subject  mat- 
ter of  the  liability  of  carriers  on  account  of  inter- 
state shipments  of  goods.  The  rules  of  decision,  there- 
fore, prevailing  in  the  federal  courts  with  respect  to  the 
statute  supersedes  all  the  laws  and  policies  of  the  states 
as  manifested  by  the  decisions  of  their  courts.^^  Where 
the  common  law  rule  of  the  state  differs  from  that  en- 

35.  United  States.     St.  Louis,  I.  Missouri.     McElvain  v.  St.  Louis 

M.  &  S.  R.  Co.  V.  Starbird,  243  U.  &  S.  F.  R.  Co.,  176  Mo.  App.  379, 

S.  592,  61  L.  Ed.  917,  37  Sup.  Ct.  158  S.  W.  464;    Joseph  v.  Chicago. 

462;    Southern  R.  Co.  v.  Prescott,  B.  &  Q.  R.  Co.,  175  Mo.  App.  18,  157 

240   U.   S.   632,   60   L.   Ed.   836,   36  S.  W.  837. 

Sup.  Ct.  469.  New  York.    Davenport  v.  Chesa- 

Kentucky.      Cleveland,   C,    C.   &  peake  &  O.  R.  Co.,  87  N.  Y.  Misc 

St.  L.  R.  Co.  V.  Young,  175  Ky.  841.  303,  149  N.  Y.  Supp.  865;    United 

195  S.  W.  93.  Lead  Co.  v.  Lehigh  Valley  R.  Co., 

Michigan.    Harrison  Granite  Co.  156   N.   Y.   App.    Div.    525,   141   N. 

V.  Grand  Trunk  R.  Co.,  175  Mich.  Y.  Supp.  310. 

144,  141  N.  W.  642.  North  Dakota.     Cook   v.   North - 

Mississippi.     Southern  R.  Co.  v.  ern  Pac.  R.  Co.,  32  N.  D.  340,  L.  R. 

North  State  Oil  Co.,  107  Miss.  71.  A.  1916D  345.  155  N.  W.  867. 

64  So.  965;     St.  Louis  &  S.  F.  R.  South     Carolina.           Spence     v. 

Co.    v.   Woodruff   Mills.    105    Miss.  Southern  R.  Co.,  101  S.  C.  436,  85 

214,   62   So.   171.  S.     E.     1058;     Elliott     v.     Atlantic 


548  Duties  to  Interstate  Shippers.  [§  311 

forced  iu  the  federal  courts,  the  state  courts  will  follow 
the  federal  rule  as  to  all  interstate  shipments.^^* 

§  312.  State  Courts  may  Enforce  Provisions  of 
Carmack  Amendment  and  Award  Damages  Thereunder. 
Although  Section  9  provides  that  persons  damaged  by 
a  violation  of  the  Interstate  Commerce  Act  may  make 
complaint  before  the  Commission  or  any  district  court 
of  the  United  States,  and  although  the  act  known  as 
the  Carmack  amendment  which  renders  the  initial  car- 
rier liable  for  loss  or  damage  to  an  interstate  shipment 
caused  by  it,  or  by  a  connecting  carrier,  was  passed  as  an 
amendment  to  the  Act  to  Regulate  Commerce,  damages 
caused  by  the  failure  to  deliver  goods  as  required  by 
the  Carmack  amendment  are  not  within  the  provisions 
of  sections  8  and  9  of  the  statute;  because  the  cause  of 
action  is  the  loss  of  the  property  intrusted  to  the  common 
carrier  and  such  loss  is  in  no  way  traceable  to  a  vio- 
lation of  the  provisions  of  the  Act  to  Regulate  Com- 
merce.^^  "The  ,iurisdiction  of  the  state  court,"  said 
Mr.  Justice  Lamar  in  the  Wallace  case,  "was  attacked, 
iirst,  on  the  ground  that  sec.  9  of  the  original  act  of  1887 
provided  that  persons  damaged  by  a  violation  of  the 
statute  'might  make  complaint  before  the  commission 
.  .  .  or  in  any  District  or  Circuit  Court  of  the  United 
States.'  24  Stat.  379.  It  was  contended  that  Texas  & 
Pacific  Ry.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426, 
ruled  that  this  jurisdiction  was  exclusive,  and  from  that 
it  was  argued  that  no  suit  could  be  maintained  in  a 
state  court  on  any  cause  of  action  created  either  by  the 
original  act  of  1887  or  by  the  amendment  of  1906.  But 
damage  caused  by  failure  to  deliver  goods  is  in  no  way 

Coast  Line  R.  Co.,  94  S.  C.  129,  75  Kibler,  Ohio  ,  119  N.  E. 

S.  E.  88t;.  77  S.  E.  718.  733. 

South  Dakota.    House  v.  Chicago  36.    Galveston,  H.  &  S.  A.  R.  Co. 

&  N.  W.  R.  Co.,  30  S.  D.  321,  Ann.  v.   Wallace,   223    U.    S.    481,   56   L. 

Cas.  1915C  1045,  138  N.  W.  809.  Ed.  516,  32  Sup.  Ct.  205;    Atlantic 

Wisconsin.    Chicago,  M.  &  St.  P.  Coast    Line    R.    Co.    v.    Riverside 

R.  Co.  V.  Rock  County  Sugar  Co.,  Mills,  219  U.  S.  186,  55  L.  Ed.  167, 

162  Wis.  374,  156  N.  W.  607.  31  Sup.  Ct.  164,  31  L.  R.  A.  (N.  S.) 

35a.     Toledo  &  O.  C.  Ry.  Co.  v.  7. 


§  313]         Liabilities  for  Loss  and  Damages.  549 

traceable  to  a  violation  ol'  the  statute,  and  is  not,  there- 
fore, within  the  provision  of  sees.  8  and  D  of  the  act  to 
regulate  commerce.  Atlantic  Coast  Line  v.  Riverside 
Mills,  219  U.  S.  186,  208.  The  real  question,  therefore, 
])resented  by  this  assignment  of  error,  is  whether  a  state 
court  may  enforce  a  right  of  action  arising  under  an  act 
of  Congress.  Statutes  have  no  extra-territorial  opera- 
tion, and  the  courts  of  one  government  cannot  enforce 
the  penal  laws  of  another.  At  one  time  there  was  some 
question  both  as  to  the  duty  and  power  to  try  civil  cases 
arising  solely  under  the  statutes  of  another  State.  But 
it  is  now  recognized  that  the  jurisdiction  of  state  courts 
extends  to  the  hearing  and  determination  of  any  civil 
and  transitory  cause  of  action  created  by  a  foreign  stat- 
ute, provided  it  is  not  of  a  character  opposed  to  the 
public  policy  of  the  State  in  which  the  suit  is  brought. 
Where  the  statute  creating  the  right  provides  an  ex- 
clusive remedy,  to  be  enforced  in  a  particular  way,  or 
before  a  special  tribunal,  the  aggrieved  party  will  be 
left  to  the  remedy  given  by  the  statute  which  created 
the  right.  But  jurisdiction  is  not  defeated  by  implica- 
tion. And,  considering  the  relation  between  the  Federal 
and  the  state  Government,  there  is  no  presumption  that 
Congress  intended  to  prevent  state  courts  from  exer- 
cising the  general  jurisdiction  already  possessed  by  them, 
and  under  which  they  had  the  power  to  hear  and  de- 
termine causes  of  action  created  by  Federal  statute. 
Robb  V.  Connolly,  111  U.  S.  624,  637.'  On  the  contrary, 
the  absence  of  such  provision  would  be  construed  as 
recognizing  that  where  the  cause  of  action  was  not  penal, 
but  civil  and  transitory,  it  was  to  be  subject  to  the  princi- 
ples governing  that  class  of  cases,  and  might  be  assert- 
ed in  a  state  court  as  well  as  in  those  of  the  United 
States.  This  jiresumption  would  be  strengthened  as  to 
a  statute  like  this  passed,  not  only  for  the  purpose  of 
giving  a  right,  but  of  affording  a  convenient  remedy." 

§  313.  Actions  Brought  in  State  Courts  under  Car- 
mack  Amendment  not  Removable,  When.  The  Judicial 
Code  as  originally  enacted  provided  that  any  suit  of  a 
civil  nature,  at  law  or  in  equity,  arising  under  the  Consti- 


550  Duties  to  Interstate  Shippers.  [§  313 

tut  ion  or  tlie  laws  of  the  United  States,  of  which  the 
district  courts  of  the  United  States  are  given  jurisdic- 
tion, brought  in  any  state  court,  may  be  removed  by  the 
defendant  therein  to  the  district  court  of  the  United 
States  for  the  proper  district.'"  Applying  this  provi- 
sion, it  was  held  that  an  action  for  damages  under  the 
Carmack  amendment  was  a  suit  of  a  civil  nature  under 
the  laws  of  the  United  States  and  might,  therefore,  be 
removed  to  the  proper  federal  court  without  regard  to 
the  amount  involved. ^^  To  obviate  the  result  following 
from  these  decisions,  Congress  passed  an  act  which  pro- 
vides that  no  suit  brought  in  an}^  state  court  of  com- 
petent jui'ii^diction  against  a  railroad  company,  or  other 
corporation,  or  person,  engaged  in  and  carrying  on  the 
business  of  a  common  carrier,  to  recover  damages  for 
delay,  loss  of,  or  injury  to  property  received  for  trans- 
portation by  such  common  carrier  under  the  Carmack 
amendment,  shall  be  removed  to  any  court  of  the  United 
States  where  the  matter  in  controversy  does  not  exceed, 
exclusive  of  interest  and  costs,  the  sum  or  value  of 
$3,000.^'-' 

§  314.  Initial  Carrier  may  not  be  Sued  in  Domicile 
of  Terminal  Carrier.  It  is  well  established  that  in  order 
to  render  a  corporation  amenable  to  service  of  process 
in  a  foreign  jurisdiction  it  must  appear  that  the  corpora- 
tion is  transacting  business  in  that  district  to  such  an 
extent  as  to  subject  it  to  the  jurisdiction  and  laws  there- 
of.*"    In   St.   Louis   Southwestern   R.    Co.    of  Texas   v. 

37.  Section  28  of  Chap.  3  of  Green  v.  Chicago,  B.  &  Q.  R.  Co., 
the  Judicial  Code,  36  Stat,  al  L.  205  U.  S.  530,  51  L.  Ed.  916,  27 
1094.  Sup.  Ct.  595;    Peterson  v.  Chicago, 

38.  Alabama  Great  Southern  R.  I.  &  P.  R.  Co.,  205  U.  S.  364, 
Co.  V.  American  Cotton  Oil  Co.,  51  L.  Ed.  841,  27  Sup.  Ct.  513;  Geer 
143  C.  C.  A.  313,  229  Fed.  11.  v.  Mathieson  Alkali  Works,  190  U. 

39.  Act  of  Jan.  20,  1914,  38  Stat.  S.  428,  47  L.  Ed.  1122,  23  Sup.  Ct. 
at  L.  278.  807;     Conley  v.    Mathieson    Alkali 

40.  Herndon-Carter  Co.  v.  Works,  190  U.  S.  406.  47  L.  Ed. 
James  N.  Norris,  Son  &  Co.,  224  1113,  23  Sup.  Ct.  728;  Goldey  v. 
U.  S.  496,  56  L.  Ed.  857,  32  Sup.  Morning  News,  156  U.  S.  518,  39 
Ct.  550;  Mechanical  Appliance  L.  Ed.  517,  15  Sup.  Ct.  559;  St. 
Co.  V.  Castleman,  215  U.  S.  437,  Clair  v.  Cox.  106  U.  8.  350,  27  L. 
54    L.    Ed.    272,    30    Si:p.    Ct.    125;  Ed.  222,  1  Sup.  Ct.  354;    Lafayette 


§    314]  I.IABILITIKS    FOR    LoSS    AND    DaMAGES.  551 

Alexander/'  it  was  conteudod  by  tlio  holder  of  the  bill 
of  lading  that  an  initial  carrier  domiciled  in  Texas  which 
had  contracted  to  trans})ort  the  goods  from  a  point  in 
Texas  to  New  York  through  its  connecting  carriers 
became,  by  virtue  of  the  statute,  subject  to  service  of 
process  in  New  York  througli  tlie  connecting  carrier 
as  its  agent;  but  the  court  rejected  this  theory,  and  said: 
"The  object  of  the  statute  was  to  require  the  initial  car- 
rier receiving  freight  for  transportation  in  interstate 
commerce  to  obligate  itself  to  carry  to  the  point  of  desti- 
nation, using  the  lines  of  connecting  carriers  as  its  agen- 
cies, thus  securing  for  the  benefit  of  the  shipper  unity  of 
transportation  and  responsibility.  Atlantic  Coast  Line 
R.  R.  Co.  V.  Riverside  Mills,  219  tl.  S.  p.  203.  The  provi- 
sions of  the  amendment  had  the  etTect  of  facilitating  the 
remedy  of  the  shipper  by  making  the  initial  carrier  re- 
sponsible for  the  entire  carriage,  but  the  amendment  was 
not  intended,  as  we  view  it,  to  make  foreign  corporations 
through  connecting  carriers  liable  to  suit  in  a  district 
where  they  were  not  carrying  on  business  in  the  sense 
which  has  heretofore  been  held  necessary  to  confer  juris- 
diction. We  reach  the  conclusion  that  this  case  is  to  be 
decided  upon  the  principles  which  have  heretofore  pre- 
vailed in  determining  whether  a  foreign  corporation  is 
doing  business  within  the  district  in  such  sense  as  to 
subject  it  to  suit  therein.  This  court  has  decided  each 
case  of  this  character  upon  the  facts  brought  before  it 
and  has  laid  down  no  all-embracing  rule  by  which  it 
may  be  determined  what  constitutes  the  doing  of  busi- 
ness by  a  foreign  corporation  in  such  manner  as  to 
subject  it  to  a  given  jurisdiction.  In  a  general  way  it 
may  be  said  that  the  business  must  be  such  in  character 
and  extent  as  to  warrant  the  inference  that  the  corpora- 
tion has  subjected  itself  to  the  jurisdiction  and  laws 
of  the  district  in  which  it  is  served  and  in  which  it  is 
bound  to  appear  when  a  proper  agent  has  been  served 
with  process." 

Ins.  Co.  V.  French,  18  How.  (  U.  S.)  41.    227  U.  S.  218,  57  L.  Ed.  486. 

404,   15   L.   Ed.   451.  3:5  Sup.  Ct.  245,  Ann.  Cas.  1915B  77. 


552  Duties  to  Interstate  Shippers.  [§315 

§  315.  Receipt  from  Shipper  of  Money  Paid  by  Ini- 
tial Carrier  Binding  upon  Connecting  Carrier  in  Absence 
of  Fraud.  Tlie  statute  provides  tliat  the  common  car- 
rier, raih'oad  or  transportation  company  issuing  the 
receipt  or  bill  of  lading  shall  be  entitled  to  recover  from 
the  common  carrier,  railroad  or  transportation  company 
on  whose  lines  the  loss,  damage  or  injury  was  sustained, 
the  amount  of  such  loss,  damage  or  injury  as  it  may 
be  required  to  pay  to  the  owners  of  such  property,  as 
may  be  evidenced  by  any  receipt,  judgment  or  trans- 
cript thereof.  The  purpose  of  the  act  was  to  give  the 
initial  carrier,  after  it  had  been  required  to  pay  a  loss, 
a  remedy  over  against  the  particular  carrier  causing 
the  loss,  for  the  amount  paid  by  the  initial  carrier  as 
evidenced  by  any  receipt,  etc.*^  If,  therefore,  there  is 
a  loss  of  or  damage  to  goods  under  a  contract  of  af- 
freightment made  with  the  initial  carrier  which  it,  in 
good  faith,  has  paid  to  the  owner,  the  receipt  of  the 
shipper  showing  the  payment  is  sufficient  evidence  to  es- 
tablish the  amount  of  such  claim  in  an  action  against 
the  connecting  carrier,  and,  in  the  absence  of  fraud,  is 
conclusive  thereof.^^  A  judgment  obtained  by  a  ship- 
per against  an  initial  carrier  for  loss,  injury  or  damage 
to  his  shipment  on  the  line  of  a  connecting  carrier  oper- 
ates as  a  final  adjudication  of  the  amount  of  damages 
so  sustained  and  in  any  subsequent  litigation  between 
the  carriers,  the  amount  of  such  damages  so  ascertained 
in  the  original  judgment  will  not  be  open  to  question 
except  upon  a  plea  and  proof  of  collusion  or  fraud;  but 
the  judgment  is  not  conclusive  upon  the  question  as 
to  whether  the  loss  or  damage  occurred  while  the  goods 
were  in  the  possession  and  control  of  the  connecting 
carrier.** 

42.  Atlantic  Coast  Line  R.  Co.  which  the  court  remarked  that 
V.  Riverside  Mills,  219  U.  S.  186,  even  a  judgment  obtained  by  a 
55  L.  Ed.  167,  31  Sup.  Ct.  164,  31  shipper  against  the  initial  car- 
L.  R.  A.    (N.  S.)    7.  rier  is  not  conclusive  against  the 

43.  Kansas  City  &  M.  R.  Co.  v.  connecting  carrier  but  merely 
New  York  Cent.  &  H.  River  R.  Co  ,  prima  facie  evidence. 

110  Ark.  612,  103  S.  W.  171.     But  44.     St.  Joseph  &  G.  I.  Ry.  Co. 

see  Central  of  Georgia  R.  Co.  v.      v.  Des  Moines  Union  Ry.  Co., 

Sims,  169  Ala.  295,  53  So.  826,  in       Iowa ,  162  N.  W.  812,  wherein 


<§>  316]         Liabilities  fob  Loss  and  Damages.  553 

§  316.  Recovery  Against  Initial  Carrier  Bars  an 
Action  Against  Connecting  Carriers.  When  a  shipper 
prosecutes  an  action  and  recovers  judgment  against 
an  initial  carrier  for  loss  and  damage  to  an  interstate 
shipment  and  accepts  payment  thereof,  he  is  then  pre- 
cluded from  recovering  additional  damages  for  the 
same  cause  of  action  against  the  connecting  carrier; 
because  when  a  party  elects  to  sue  a  tortfeasor  who  is 
liable  for  all  the  damages,  and  recovers,  he  cannot  there- 
after sue  the  other  wrongdoer.'''  It  appeared  from  the 
facts  in  the  O'Briant  case,  cited,  that  the  i)!aintiff  ship- 
ped live  stock  from  Athens,  Tenn.,  to  Glenwood,  Mo.,  the 
shipment  moving  over  the  line  of  the  Louisville  &  Nash- 
ville Railroad  from  Athens  to  East  St.  Louis,  111.,  and 
over  the  line  of  the  Wabash  Railroad  from  East  St. 
Louis  to  Glenwood,  Mo.  He  brought  an  action  for  the 
loss  and  damage  complained  of  against  the  initial  car- 
rier and  recovered  a  judgment,  which  was  paid.  Being 
dissatisfied  with  the  amount  of  the  judgment,  he  there- 
after prosecuted  an  action  against  Pryor  as  the  receiver 

the  court  said:  "The  judgment  fendant,  then  the  statute  makes 
against  the  plaintiff  entered  in  the  judgment  in  favor  of  Duncan 
the  Missouri  court  is  neither  in  competent  evidence  upon  the  fur- 
form  or  effect  a  judgment  against  ther  question  as  to  the  amount  of 
the  defendant  in  this  case,  nor  was  plaintiff's  recovery.  Such  Is  the 
it  given  any  such  effect  by  the  very  obivous  meaning  and  intent 
trial  court.  The  right  of  the  of  the  statute,  and  the  court  is 
plaintiff  in  this  action  to  recover  not  at  liberty  to  nullify  its  effect 
depends,  not  upon  the  judgment  by  any  strained  or  unnatural  con- 
mentioned,  but  upon  the  suflicien-  struction  of  its  language.  As  the 
cy  of  the  showing  that  the  loss.  statute  makes  the  initial  carrier 
injury  or  damage  for  which  such  primarily  liable  to  the  shipper  for 
judgment  was  entered  occurred  on  the  default  or  negligence  of  any 
the  defendant's  line  of  railroad,  and  all  connecting  carriers,  as 
and  so  far  as  that  issue  is  con-  well  as  its  own,  it  is  thereby  com- 
cerned  the  adjudication  between  pelled,  vrhen  sued  upon  a  claim 
Duncan  and  the  plaintiff  is  of  no  of  that  nature,  to  defend,  not 
force  or  effect  against  the  defend-  alone  its  own  conduct  in  the  prem- 
ant.  But  when  the  plaintiff  had  ises,  but  the  conduct  of  all  the 
offered  evidence  tending  to  show,  carriers  making  up  the  connected 
and  as  we  think  conclusively  show-  line  of  through  transportation." 

ing,   that   the   injury  to   the  ship-  45.     O'Briant  v.  Pryor.  Mo. 

ment  was  sustained  while  in  the  App.  ,  195  S.  W.  759. 

possession  and  control  of  the  de- 


554  Duties  to  Ixteestate  Shippers.  [§  316 

of  the  AVabasli  Eailroad  Compan}^  and  obtained  a  judg- 
ment in  the  trial  conrt.  It  was  held  that  he  conld  not 
recover,  *' Under  the  Carmack  Amendment,"  said  Judge 
Ellison,  ''to  the  Interstate  Commerce  Act  the  initial  car- 
rier (the  Louisville  &  Nashville  company)  was  liable 
for  all  damages  for  the  through  shipment,  although 
all,  or  a  part,  of  such  damages  accrued  by  reason  of  the 
negligence  of  the  destination  carrier.  Atlantic  Coast 
LineV.  Eiverside  Mills,  219  U.  S.  186,  31  Sup.  Ct.  164, 
55  L.  Ed.  167,  31  L.  E.  A.  (N.  S'.)  7;  Adams  Express  Co. 
V.  Croninger,  226  U.  S.  491,  33  Sup.  Ct.  148,  57  L.  Ed. 
314,  44  L.  E.  A.  (N.  S.)  257.  And  such  is  the  decision 
of  the  Springfield  Court  of  Appeals.  Jones  v.  Eailroad, 
182  S.  W.  1064.  The  case  presented  is  that  plaintiff  be- 
gan an  action  against  a  wrongdoer  who  was  liable  for 
the  entire  wrong  committed  on  his  property,  prosecuted 
it  to  judgTQent,  recovered  a  smaller  sum  than  he  asked, 
but  acquiesced  and  accepted  such  sum  in  satisfaction 
of  the  judgment.  He  then  afterwards  began  an  action 
against  a  second  wrongdoer  liable  for  a  part  of  the  dama- 
ge done  to  the  same  property,  seeking  to  recover  such 
part.  When  he  elected  to  sue  the  party  liable  for  all 
the  damage,  that  disabled  him  from  dividing  up  his 
action,  by  accepting  a  part  and  suing  the  other  wrong- 
doer, who  committed  other  parts  of  the  damage.  When 
he  accepted  satisfaction  from  the  wrongdoer  liable  for 
all,  he  discharged  the  others.  Chicago  Herald  Co.  v. 
Bryan,  195  Mo.  574,  588,  92  S.  W.  902.  In  Brown  v. 
Cambridge,  3  Allen  (Mass.)  474,  it  is  said:  'The  same 
doctrine  applies  to  all  joint  torts,  and  to  torts  for  which 
the  injured  party  has  an  election  to  sue  one  or  more 
parties  severally.  Where,  for  example,  a  master  is  liable 
for  the  tort  of  his  servant,  a  satisfaction  from  one  dis- 
charges both,  though  they  cannot  be  sued  jointly.' 
Plaintiff  seeks  to  avoid  the  effect  of  his  former  suit  by 
testifying  that  he  was  present  'when  the  court  rendered 
judgment  for  me  for  $95  for  3  cows  and  1  calf,  and  that 
the  court's  finding  was  based  on  the  fact  that  they  were 
not  delivered,  and  also  that  I  didn't  give  notice  to  the 
Louisville  &  Nashville  company.'  We  think  such  testi- 
mony does  not  affect  the  law  as  we  have  stated  it." 


Sec. 

317. 

Sec. 

318. 

Sec. 

319. 

Sec. 

320. 

Sec. 

321. 

Sec. 

322. 

Sec. 

323. 

Sec. 

324. 

CHAPTER  XVI 

The   Carmack  Amendment  as   Modified  by   Fihst   and 
Second   Cummins  Amendments. 

Text  of  the  Carmack  Amendment  as  Modified  by  P"'irst  and 
Second  Cummins  Amendments. 

Causes  Leading  to  Enactment  of  First  Cummins  Amendment 
— Agreed  Valuation  Clauses  and  Notices  of  Loss. 

Effect  of  Second   Cummins  Amendment  upon   Provisions  of 
First  Cummins  Amendment. 

Object  and   Purpose  of  Congress   in    Enacting  Second   Cum- 
mins Amendment  of  1916. 

Cummins  Amendment  has  no  Retroactive  Effect. 

Initial  Carriers  Subject  to  the  Statute  as  Changed  by  Cum- 
mins Amendment. 

Interurban    Electric    Railroad    Subject    to    Statute,    When. 

Carriers  Liable  for  Full  Actual  Loss,  Damage  or   Injury  to 
Ordinary  Live  Stock. 
Sec.  325.     Limitations   of   Liability   Valid   as   to   Property   Other  Than 

Live  Stock,  When. 
Sec.  326.     Stipulations  as  to  Notice  of  Claims  and  Limitations   upon 

filling  of  Suits  Now  Regulated  by  Statute. 
Sec.  327.     Statute  not  Applicable  to  Export  and  Import  Shipments  to 
and  from  Countries  not  Adjacent  to  United  States. 

§  317.  Text  of  the  Carmack  Amendment  as  Modi- 
fied by  First  and  Second  Cummins  Amendments.  The 
Carmack  anieiidmeiit  as  modilied  by  the  lirst'  and  second^ 
Cummins  amendments  thereto,  now  reads  as  follows: 
"That  any  common  carrier,  railroad,  or  transportation 
company  subject  to  the  provisions  of  this  Act  receiving 
property  for  transportation  from  a  point  in  one  State 
or  territory  or  the  District  of  Columbia  to  a  point  in 
another  State,  Territory,  District  of  Columbia,  or  from 
any  point  in  the  United  States  to  a  point  in  an  adjacent 
foreign  country  shall  issue  a  receipt  or  bill  of  lading 
therefor,  and  shall  be  liable  to  the  lawful  holder  thereof 
for  any  loss,  damage,  or  injury  to  such  property  caused 
by  it  or  by  any  common  carrier,  railroad,  or  transporta- 
tion comi)any  to  which  such  property  may  be  delivered 

1.    Act  of  March  4,  1915.  38  Stat.  2.      Act    of    August    9,    191(1.    39 

at  L.  1197.  Stat,  at  L.  441. 

(555) 


556  Duties  to  Inteestate  Shippebs.  [§  317 

or  over  whose  line  or  lines  such  property  may  pass  with- 
in the  United  States  or  within  an  adjacent  foreign  count- 
ry when  transported  on  a  through  bill  of  lading,  and 
no  contract,  receipt,  rule,  regulation,  or  other  limitation 
of  any  character  whatsoever,  shall  exempt  such  common 
carrier,  railroad,  or  transportation  company  from  the 
liability  hereby  imposed;  and  any  such  common  carrier, 
railroad,  or  transportation  company  so  receiving  prop- 
erty for  transportation  from  a  point  in  one  State,  Terri- 
tory, or  the  District  of  Columbia  to  a  point  in  another 
State  or  Territory,  or  from  a  point  in  a  State  or  Terri- 
tory to  a  point  in  the  District  of  Columbia,  or  from  any 
point  in  the  United  States  to  a  point  in  an  adjacent  for- 
eign country,  or  for  transportation  wholly  within  a 
Territory  shall  be  liable  to  the  lawful  holder  of  said 
receipt  or  bill  of  lading  or  to  any  party  entitled  to  recov- 
er thereon,  whether  such  receipt  or  bill  of  lading  has  been 
issued  or  not,  for  the  full  actual  loss,  damage,  or  injury 
to  such  property  caused  by  it  or  by  any  such  common 
carrier,  railroad,  or  transportation  company  to  which 
such  property  may  be  delivered  or  over  whose  line  or 
lines  such  property  may  pass  within  the  United  States 
or  within  an  adjacent  foreign  country  when  transported 
on  a  through  bill  of  lading,  notwithstanding  any  limita- 
tion of  liability  or  limitation  of  the  amount  of  recovery 
or  representation  or  agreement  as  to  value  in  any  such 
receipt  or  bill  of  lading,  or  in  any  contract,  rule,  regu- 
lation, or  in  any  tariff  filed  with  the  Interstate  Com- 
merce Commission;  and  any  such  limitation,  without 
respect  to  the  manner  or  form  in  which  it  is  sought  to 
be  made  is  hereby  declared  to  be  unlawful  and  void: 
Provided,  hoivever,  That  the  provisions  hereof  respect- 
ing liability  for  full  actual  loss,  damage,  or  injury,  not- 
withstanding any  limitation  of  liability  or  recovery  or 
representation  or  agreement  or  release  as  to  value,  and 
declaring  any  such  limitation  to  be  unlawful  and  void, 
shall  not  apply,  first,  to  baggage  carried  on  passenger 
trains  or  boats,  or  trains  or  boats  carrying  passengers; 
second,  to  property,  except  ordinary  live  stock,  received 
for  transportation  concerning  which  the  carrier  shall 
have  been   or   shall   hereafter   be   expressly   authorized 


§  317]       Carmack  and  Cummins  Amendments.  557 

or  required  by  order  of  the  Interstate  Commerce  Com- 
mission to  establish  and  maintain  rates  dependent  upon 
the  value  declared  in  writing  by  the  shipper  or  agreed 
upon  in  writing  as  the  released  value  of  the  property, 
in  which  case  such  declaration  or  agreement  shall  have 
no  other  effect  than  to  limit  liability  and  recovery  to 
an  amount  not  exceeding  the  value  so  declared  or 
released,  and  shall  not,  so  far  as  relates  to  values,  be 
held  to  be  a  violation  of  section  ten  of  this  Act  to  regu- 
late commerce,  as  amended;  and  any  tariff  schedule 
which  may  be  filed  with  the  Commission  pursuant  to 
such  order  shall  contain  sju'cific  reference  thereto  and 
may  establish  rates  varying  with  the  value  so  declared 
or  agreed  upon;  and  the  Commission  is  hereby  empower- 
ed to  make  such  order  in  cases  where  rates  dependent 
upon  and  varying  with  declared  or  agreed  values  would, 
in  its  opinion,  be  just  and  reasonable  under  the  circum- 
stances and  conditions  surrounding  the  transportation. 
The  term  'ordinary  live  stock'  shall  include  all  cattle, 
swine,  sheep,  goats,  horses,  and  mules,  except  such  as 
are  chiefly  valuable  for  breeding,  racing,  show  purposes, 
or  other  special  uses:  Provided  further,  That  notliing 
in  this  section  shall  deprive  any  holder  of  such  receipt 
or  bill  of  lading  of  any  remedy  or  right  of  action  which 
he  has  under  the  existing  law:  Provided  further,  That 
it  shall  be  unlawful  for  any  such  common  carrier  to  pro- 
vide by  rule,  contract,  regulation,  or  otherwise  a  short- 
er period  for  giving  notice  of  claims  than  ninety  days 
and  for  the  filing  of  claims  for  a  shorter  period  than 
four  months,  and  for  the  institution  of  suits  than  two 
years :  Provided  further.  That  if  the  loss,  damage,  or 
injury  complained  of  was  due  to  delay  or  damage  while 
being  loaded  or  unloaded,  or  damaged  in  transit  by 
carlessness  or  negligence,  then  no  notice  of  claim  nor 
filing  of  claim  shall  be  re(iuired  as  a  condition  precedent 
to  recovery.  That  the  common  carrier,  railroad,  or  trans- 
portation company  issuing  such  receipt  or  bill  of  lading 
shall  be  entitled  to  recover  from  the  common  carrier, 
railroad,  or  transportation  company  on  whose  line  the 
loss,  damage,  or  injury  shall  have  been  sustained  the 
amount  of  such  loss,  damage,  or  injury  as  it  may  be  re- 


558  Duties  to  Intebstate  Shippees.  [§  317 

quired  to  pay  to  the  owners  of  siicli  property,  as  may 
be  evidenced  by  any  receipt,  judgment,  or  transcript 
thereof. ' ' 

§  318.  Causes  Leading  to  Enactment  of  First 
Cummins  Amendment — Agreed  Valuation  Clauses  and 
Notice  of  Loss.  In  construing  the  Carmack  amendment 
as  originally  enacted,  the  federal  Supreme  Court  in  a 
series  of  cases,  beginning  in  1913  with  Adams  Exp.  Co. 
V.  Croninger,^  held  that  while  a  common  carrier  could 
not  exempt  itself  from  liability  for  its  own  negligence 
or  that  of  its  servants,*  it  might,  however,  by  a  fair, 
open,  just  and  reasonable  agreement,  limit  the  amount  re- 
coverable by  a  shipper  in  case  of  loss  or  damage  to  an 
agreed  valuation,  made  for  the  purpose  of  obtaining  the 
lower  of  two  or  more  rates  proportioned  to  the  amount 
of  the  risk.  When,  therefore,  the  bill  of  lading  and  the 
tariffs  of  a  carrier  contained  two  rates  based  on  valua- 
tion and  goods  were  shipped  at  the  lower  value  in  order 
to  secure  the  lower  rate,  the  Supreme  Court,  in  many 
cases  prior  to  the  Cummins  amendment,  held  that  the 
valuation  so  declared  and  fixed  in  the  tariffs  controlled 
when  the  carrier  was  sued  for  loss  or  damage,  as  the 
shipper  was  conclusively  presumed  to  have  knowledge 
of  the  schedules  on  file  with  the  Commission.' 

3.  226  U.  S.  491,  57  L.  Ed.  314,  L.  Ed.  210,  37  Sup.  Ct.  43;  Cin- 
33  Sup.  Ct.  148,  44  L.  R.  A.  (N.  S.)  cinnati,  N.  0.  &  T.  P.  R.  Co.  v. 
257.  Rankin,  241  U.   S.   319,  GO   L.  Ed. 

4.  The  court  cited  the  follow-  1022,  36  Sup.  Ct.  555,  L.  R.  A.  1917 
ing  cases:  Hart  v.  Pennsylvania  A  265;  Louisville  &  N.  R.  Co.  v. 
R.  Co.,  112  U.  S.  331,  28  L.  Ed.  717,  Maxwell,  237  U.  S.  94,  59  L.  Ed. 
5  Sup.  Ct.  151;  Bank  of  Kentucky  853,  35  Sup.  Ct.  494,  L.  R.  A.  1915 
V  Adams  Exp.  Co.,  93  U.  S.  174,  23  E  665;  Pierce  Co.  v.  Wells  Fargo 
L.  Ed.  872;  New  York  Cent.  R.  Co.  &  Co.,  236  U.  S.  278,  59  L.  Ed.  576, 
V.  Lockwood,  17  Wall.  (U.  S.)  357,  35  Sup.  Ct.  351;  Atchison.  T.  & 
21  L.  Ed.  627;  York  Mfg.  Co.  v.  S.  F.  R.  Co.  v.  Robinson,  233  U.  S. 
Illinois  Cent.  R.  Co.,  3  Wall.  (U.  173,  58  L.  Ed.  901,  34  Sup.  Ct.  556; 
S.)   107,  18  L.  Ed.  170.  Boston  &  M.  F.  Co.  v.  Hooker.  233 

5.  American  Exp.  Co.  v.  United  U.  S.  97,  58  L.  Ed.  868,  34  Sup. 
States  Horse  Shoe  Co.,  244  U.  S.  Ct.  526,  L.  R.  A.  1915B  450,  Ann. 
58,  61  L.  Ed.  990,  37  Sup.  Ct.  595;  Cas.  1915D  593;  Great  Northern 
New  York  Cent.  &  H.  River  R.  R.  Co.  v.  O'Connor,  232  U.  S.  508, 
Co.  v.  Beaham,  242  U.  S.  148,  61  58  L.  Ed.  703,  34  Sup.  Ct.  380,  8 


§  318j       Carmack  and  Cummins  Amendments. 


559 


In  enforcing  tlie  provisions  of  the  Carmack  amend- 
ment as  originally  enacted,  the  courts  also  upheld  the 
validity  of  stipulations  in  the  shipi^ing  contracts  pro- 
viding for  a  written  notice  of  claims  for  damages  to  be 
given  the  carrier  within  a  designated  time."  For  ex- 
ample, a  livestock  contract  which  provided  that  claims 
for  damages  should  be  presented  within  five  days  from 
the  time  the  stock  were  removed  from  the  cars,  was  held 
to  be  valid  and  enforceable  as  to  an  interstate  shipment.^ 
Similarly,  provisions  in  bills  of  lading  re(iuiring  that 
suits  for  loss  or  damage  be  brought  within  a  designated 
time  shorter  than  the  statute  of  limitation,  were  upheld.^ 

The  purpose  of  Congress  in  the  enactment  of  the 
Cummins  amendment  was  to  destroy,  in  a  measure  and 
to  the  extent  indicated  in  the  succeeding  paragraphs, 
the  effect  of  these  decisions  in  limiting  and  cpialifving 


N.  C.  C.  A.  53;  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Cramer,  232  U.  S.  490,  58 
L.  Ed.  697,  34  Sup.  Ct.  383;  Mis- 
souri, K.  &  T.  R.  Co.  V.  Harriman. 
227  U.  S.  657,  57  L.  Ed.  690,  33 
Sup.  Ct.  397;  Kansas  City  Soutli- 
ern  R.  Co.  v.  Carl,  227  U.  S.  639, 
57  L.  Ed.  683,  .33  Sup.  Ct.  391. 

6.  United  States.  St.  Louis.  I. 
M.  &  S.  R.  Co.  V.  Starbird.  243  U. 
S.  592,  61  L.  Ed.  917,  37  Sup.  Ct. 
462;  GeorKia,  F.  &  A.  R.  Co.  v. 
Blish  Milling  Co.,  241  U.  S.  190, 
60  L.  Ed.  948.  36  Sup.  Ct.  541; 
Northern  Pac.  R.  Co.  v.  Wall,  241 
U.  S.  87,  60  L.  Ed.  905,  36  Sup.  Ct. 
49.S;  Missouri,  K.  &  T.  R.  Co.  v. 
Harriman,  227  U.  S.  657,  57  L.  Ed. 
690,  33  Sup.  Ct.  397;  Southern  Exp. 
Co.  V.  Caldwell.  21  Wall.  (U.  S.) 
264.   22   L.   Ed.   556. 

Arkansas.  Lusk  v.  Long.  127 
Ark.  261,  192  S.  W.  213:  St.  Louis 
&  S.  F.  R.  Co.  V.  Keller,  90  Ark. 
308,  119  S.  W.  254. 

Colorado.     Atchison,  T.  &   S.   F. 

Ry.  Co.  V.  IMiller.  Colo.  , 

16,"^  Pac.  836. 

Georgia.     Mitchell  &  Co.  v.  At- 


lantic Coast  Line  R.  Co.,  15  Ga. 
App.  797,  84  S.  E.  227. 

Iowa.    Erisman  v.  Chicago,  B.  & 

Q.  R.  Co.,  Iowa  ,  163  N. 

W.  627. 

Kansas.  Abell  v.  Atchison,  T. 
&  S.  P.  R.  Co..  100  Kan.  238,  164 
Pac.   269. 

Missouri.      .Johnson    v.    Missouri 

Pac.   Ry.  Co.,  Co.  App.  , 

187  S.  W.  282;  Johnson  Grain  Co. 
V.  Chicago,  B.  &  Q.  R.  Co.,  177  Mo. 
App.  194,  164  S.  W.  182;  McElvain 
V.  St.  Louis  &  S.  F.  R.  Co..  176  Mo. 
App.  379.  l.')8  S.  W.  464. 

North  Dakota.  Strommer  v.  Chi- 
vago.  M.  &  St.  P.  R.  Co..  38  S. 
D.  368.  161  N.  W.  346. 

Oklahoma.  Chicago.  R.  I.  &  P. 
Ry.  Co.  V.  Parsons, Okla. , 

162  Pac.  955. 

7.  Erie  R.  Co.  v.  Stone.  244  U. 
S.  332,  61  L.  Ed.  1173.  37  Sup.  Ct. 
633,  Ann.  Cas.  1918A  1024. 

8.  Missouri,  K.  &  T.  R.  Co.  v. 
Harriman,  227  U.  S.  657.  57  L.  Ed. 
690.  33  Sup.  Ct.  397:  Sims  v.  Mis- 
souri Pac.  R.  Co..  177  Mo.  App.  18, 

163  S.   W.   275. 


560  Duties  to  Interstate  Shippees.  [^  318 

the  rights  of  shippers  wheu  suing  for  loss  or  damage  to 
interstate  shipments. 

§  319.  Effect  of  Second  Cummins  Amendment  upon 
Provisions  of  First  Cummins  Amendment.  The  sole 
change  made  in  the  Cummins  amendment  of  March  4, 
1915  by  the  second  Cummins  amendment  of  August  9, 
1916,  was  the  repeal  of  the  following  clause  therein: 
''Provided,  however,  that  if  the  goods  are  hidden  from 
view  by  wrapping,  boxing  or  other  means,  and  the  car- 
rier is  not  notified  as  to  the  character  of  the  goods,  the 
carrier  may  require  the  shipper  to  specifically  state  in 
writing  the  value  of  the  goods,  and  the  carrier  shall  not 
be  liable  beyond  the  amount  so  specifically  stated,  in 
which  case  the  Interstate  Commerce  Commission  may 
establish  and  maintain  rates  for  transportation,  depend- 
ent upon  the  value  of  the  property  shipped  as  specifical- 
ly stated  in  writing  by  the  shipper.  Such  rates  shall 
be  published  as  other  rate  schedules,"  and  the  substi- 
tution therefor  of  the  following  paragraph:  "Provided, 
however,  that  the  provisions  hereof  respecting  liability 
for  full  actual  loss,  damage,  or  injury,  notwithstanding 
any  limitation  of  liability  or  recovery  or  representation 
or  agreement  or  release  as  to  value,  and  declaring  any 
such  limitation  to  be  unlawful  and  void,  shall  not  apply, 
first,  to  baggage  carried  on  passenger  trains  or  boats, 
or  trains  or  boats  carrying  passengers;  second,  to  prop- 
erty, except  ordinary  live  stock,  received  for  transporta- 
tion concerning  which  the  carrier  shall  have  been  or 
shall  hereafter  be  expressly  authorized  or  required  by 
order  of  the  Interstate  Commerce  Commission  to  estab- 
lish and  maintain  rates  dependent  upon  the  value  de- 
clared in  writing  by  the  shipper  or  agreed  upon  in  writ- 
ing as  the  released  value  of  the  property,  in  which  case 
such  declaration  or  agreement  shall  have  no  other  effect 
than  to  limit  liability  and  recovery  to  an  amount  not 
exceeding  the  value  so  declared  or  released,  and  shall 
not,  so  far  as  relates  to  values,  be  held  to  be  a  violation 
of  section  ten  of  this  Act  to  Regulate  Commerce,  as 
amended;  and  any  tariff  schedule  which  may  be  filed 
with  the  commission  pursuant  to  such  order  shall  con- 


<§  320]       Carmack  and  Cummins  Amendments.  561 

tain  specific  reference  thereto  and  may  esta1)li.sli  rates 
varying  witli  the  value  so  declared  or  agreed  upon;  and 
the  commission  is  hereby  empowered  to  make  such  order 
in  cases  where  rates  dependent  upon  and  varying  with 
declared  or  agreed  values  would,  in  its  opinion,  be  just 
and  reasonable  under  the  circumstances  and  conditions 
surrounding  the  transportation.  The  term  "ordinary 
live  stock"  shall  include  all  cattle,  swine,  sheep,  goats, 
horses,  and  mules,  except  such  as  are  chiefly  valuable 
for  breeding,  racing,  show  purposes,  or  other  uses." 

§  320.  Object  and  Purpose  of  Congress  in  Enacting 
Second  Cummins  Amendment  of  1916.  The  ])ur))ose 
and  object  of  Congress  in  passing  the  second  Cunmiins 
amendment  were  thus  stated  by  the  Senate  Committee 
on  Interstate  Commerce  in  its  report  accompanying  the 
bill:  "The  proposed  legislation  is  an  amendment  of  the 
act  of  March  4,  1915,  commonly  called  the  Cummins 
amendment.  That  amendment  was  designed  to  impose 
upon  carriers  liability  for  full  actual  loss,  damage,  or 
injury,  to  property  transported  notwithstanding  any 
limitation  of  liability  or  recovery  or  representation  or 
agreement  as  to  value.  The  Cummins  amendment  as 
reported  by  this  committee  contained  a  ]n'oviso  making 
certain  exceptions  in  its  application.  The  proviso  re- 
ported by  the  committee  was  stricken  out  on  the  floor 
of  the  Senate  and  another  substituted  in  its  stead  and 
in  that  form  became  a  law. 

"The  construction  put  upon  the  proviso  by  the  Inter- 
state Commerce  Commission  has  resulted  in  some  vex- 
atious requirements  insisted  upon  by  carriers  and  in 
some  injustice.  For  instance,  it  has  been  held  by  the 
commission  that  under  the  proviso  the  carrier  may  com- 
pel the  shipper  to  state  the  value  of  the  goods  tendered 
for  shipment  and  that  if  the  true  value  is  not  stated  the 
shipper  is  liable  to  criminal  prosecution  under  section 
10  of  the  act  to  regulate  commerce.  The  committee 
does  not  agree  with  the  commission  in  the  interpreta- 
tion so  placed  upon  the  proviso,  but  there  is  no  way  in 
which  to  remedy  the  matter  except  to  make  the  intent 
of  Congress  so  clear  that  it  is  impossible  to  misunder- 

1    Control    Carriers    36 


562  Duties    to    Interstate    Shippers.  [§  320 

stand  it.  Further,  flie  commission  has  held  that  bag- 
gage carried  on  passenger  trains  npon  the  ticket  of  a 
passenger  is  within  the  terms  of  the  law.  Whether  this 
construction  is  correct  or  incorrect,  it  is  palpable  that 
baggage  so  transported  on  a  passenger  fare  ought  not  to 
be  subject  to  the  rule  which  controls  ordinary  freight, 
and  in  the  bill  now  reported  it  is  excepted  in  express 
terms. 

"The  bill  herewith  reported  has  nothing  whatever 
to  do  with  rates  on  transportation;  that  is  to  say,  it  does 
not  prescribe  the  compensation  which  carriers  may 
charge  for  service.  It  reenacts  the  Cummins  amendment 
with  the  modifications  above  suggested.  Its  purpose  is 
to  restore  the  law  of  full  liability  as  it  existed  prior  to 
the  Carmack  amendment  of  1906,  so  that  when  prop- 
erty is  lost  or  damaged  in  the  course  of  transportation 
under  such  circumstances  as  to  make  the  carrier  liable 
recovery  is  had  for  full  value  or  on  the  basis  of  full  value. 
From  this  general  rule  there  is  excepted,  first,  baggage 
carried  on  passenger  trains.  This  is  done  for  obvious 
reasons.  Second,  other  property  except  ordinary  live 
stock,  with  respect  to  which  the  Interstate  Commerce 
Commission  has  fixed  or  authorized  affirmatively  a  rate 
dependent  upon  value,  either  an  agreed  or  a  released 
value.  When  the  commission  has  fixed  or  authorized 
such  a  rate  the  value  agreed  upon  or  released  and  neces- 
sarily stated  by  the  shipper  is  not  to  be  held  as  a  repre- 
sentation of  value  under  section  10  of  the  interstate 
commerce  act.  With  respect  to  ordinary  live  stock  as 
defined  in  the  bill  there  can  be  no  rate  dependent  either 
upon  agreed  or  released  value,  and  in  the  event  of  loss 
or  damage  the  carrier  must  respond  for  the  actual  value 
of  the  property.  The  carrier  will  be  permitted  to  make 
such  a  rate  on  ordinary  live  stock  as  will  compensate  for 
the  service,  including  liability,  but  the  rate  can  not  vary 
according  to  the  value  of  each  animal  that  may  be  load- 
ed into  a  car.  There  will  remain  the  right  on  the  part 
of  the  carrier  to  classify  different  kinds  of  animals  with- 
in the  definition  of  ordinary  live  stock,  but  when  so 
classified  there  can  be  no  lawful  variance  in  rates  be- 
cause one  carload  of  such  animals  may  be  more  valuable 


§  322]     Carmack    and    Cummins    Amendments.        563 

than  another.  Tlio  committoe  thinks  it  ])roper  to  say 
ihat  in  the  preparation  of  tlie  amendment  of  S.  3069  it 
has  had  tlie  benefit  of  the  advice  of  a  member  of  the 
Interstate  Commerce  Commission  and  that  the  recom- 
mendation of  tlie  commission  has  been  adopted." 

§  321.  Cummins  Amendment  has  no  Retroactive 
Effect.  Tlie  Cummins  amendment  which  restricts  the 
right  of  the  carrier  to  make  certain  stipulations  in  a 
bill  of  lading,  is  not  retroactive  in  its  effect.  It  does 
not,  therefore,  apply  to  shipments  made  and  causes  of 
action  whicli  accrued  before  its  effective  date." 

§  322.  Initial  Carriers  Subject  to  the  Statute  as 
Changed  by  Cummins  Amendment.  The  Carmack 
amendment  as  originally  enacted  provided  that  the  ini- 
tial carrier  subject  thereto  ^Yas  a  ''common  carrier,  rail- 
road or  transportation  company  receiving  property  for 
shipment  from  a  point  in  one  state  to  a  point  in  an- 
other state."  It  therefore  included  many  common  car- 
riers not  subject  to  the  general  provisions  of  the  Inter- 
state Commerce  Act,  such  as  water  carriers  acting  inde- 
pendently of  railroads.  The  statute  did  not,  however, 
include  carriers  engaged  in  foreign  commerce  as  dis- 
tinguished from  interstate  commerce.'*^    A  railroad  com- 

9.  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  against  the  right  of  a  connecting 
Starbird,  243  U.  S.  592,  61  L.  Ed.  carrier  to  limits  its  liability  to  loss 
917,  37  Sup.  Ct.  462;  Northern  or  damage  occurring  on  its  own 
Pac.  R.  Co.  V.  Wall,  241  U.  S.  87,  line  is  only  applicable  when  the 
60  L.  Ed.  905,  36  Sup.  Ct.  493;  shipment  is  from  'a  point  in  one 
Bryan  v.  Louisville  &  N.  R.  Co.,  state  to  a  point  in  another  state.' 

N.  C. ,  93  S.  E.  750;  Wash-  The  use  of  this  language  excludes 

ington   Horse  Exch.  v.   Louisville  the  idea  that  Congress  intended  to 

&  N.  R.   Co..   171   N.   C.  65,   87   S.  prohibit  such  contracts  when  the 

E.  941.  shipment  was  to  a  foreign  coun- 

10.  J.  H.  Hamlen  &  Sons  v.  Ill-  try.  The  word  'state,'  as  used  in 
Inois  Cent.  R.  Co.,  212  Fed.  324;  the  Constitution  of  the  United 
Aldrich  v.  Atlantic  Coast  Line  R.  States,  has  been  uniformly  con- 
Co.,  104  S.  C.  364,  89  S.  E.  315;  strued  to  mean  a  constituent  mem- 
Houston  East  &  W.  T.  R.  Co.  v.  ber  or  part  of  the  federal  union 
Inman,  Akers  &  Inman.  63  Tex.  having  an  independent  local  gov- 
Civ.  App.  556,  134  S.  W.  275.  ernmental     organization,     but    as 

"This  language  is  clear  and  un-  used  in  the  statutes  and  treaties 
ambiguous,    and    the    prohibition       of  the  Ignited  States  it  has  been 


564 


Duties    to    Inteestate    Shippers. 


[^  322 


pany,  for  example,  transporting  property  from  a  point 
in  the  United  States  to  a  point  in  Canada,  was  not,  as 
to  such  a  shipment,  subject  to  the  act."  A  Missouri 
court  held  that  a  carrier  engaged  in  transporting  prop- 
erty between  two  points  in  the  same  state  but  which 
passed  in  transit  through  another  state,  was  within  the 
Carmack  amendment'^  while  a  contrary  conclusion  was 
reached  by  a  Texas  court.'^ 

But  as  changed  by  the  Cummins  amendment,  the 
act  now  applies  to  any  common  carrier,  railroad  or 
transportation  company  subject  to  the  provisions  of  the 
Interstate  Commerce  Act  receiving  property  for  trans- 
portation from  a  point  in  one  state  or  territory  or  the 
District  of  Columbia,  to  a  point  in  another  state,  terri- 


construed  to  include  territories  of 
the  United  States,  and  also  for- 
eign countries  or  states  when  such 
construction  is  required  by  the 
context  of  the  act  or  instrument, 
and  is  necessary  to  effectuate  its 
evident  purpose.  Hepburn  v.  El- 
zey,  6  U.  S.  445,  2  L.  Ed.  332; 
Downes  v.  Bidwell,  182  U.  S.  244, 

21  Sup.  Ct.  770,  45  L.  Ed.  1088; 
Tabott  V.  Silver  Bow,  139  U.  S.  438. 
11  Sup.  Ct.  594,  35  L.  Ed.  210;  De 
Geofrey  v.  Riggs,  133  U.  S.  258,  10 
Sup.  Ct.  295,  33  L.  Ed.  642;  Eid- 
man    v.    Martinez,    184    U.    S.    578, 

22  Sup.  Ct.  515,  46  L.  Ed.  697; 
Terry  v.  Olcott,  4  Conn.  442;  In- 
surance Co.  V.  Insurance  Commis- 
sioners, 64  Mich.  614,  31  N.  W.  542. 
We  think  it  is  clear  from  an  exami- 
nation of  the  entire  act  that  the 
word  'state,'  as  used  in  the  amend- 
ment in  question,  was  used  in  its 
limited  constitutional  sense,  and 
was  intended  to  mean  a  state  of 
the  federal  Union.  Other  portions 
of  the  act  are  expressly  made  ap- 
plicable to  shipments  from  'any 
state  or  territory  or  the  District 
of  Columbia  to  any  other  state,  ter- 


ritory or  District  of  Columbia,  or 
to  any  foreign  country,'  showing 
that  Congress  did  not  understand 
or  intend  that  the  word  'state,*  as 
used  in  the  amendment,  should  in- 
clude a  foreign  state  or  country, 
as  well  a  state  of  the  Union."  Hous- 
ton, East  &  W.  T.  R.  Co.  v.  In- 
man,  Akers  &  Inman,  supra.  Con- 
tra:  Texas  &  P.  Ry.  Co.  v.  Lang- 

behn, Tex.  Civ.  App. ,  158 

S.  W.  244. 

11.  Best  V.  Great  Northern  R. 
Co.,  159  Wis.  429,  150  N.  W.  484, 
in  which  the  court  said:  "The 
Carmack  amendment  does  not  ap- 
ply to  the  case,  because  the  ship- 
ment here  was  not  from  'a  point 
in  one  state  to  a  point  in  another 
state,'  but  from  a  point  in  one 
state  to  a  foreign  country,  and  un- 
der such  circumstances  the  Car- 
mack amendment  does  not  apply." 

12.  Howard  v.  Chicago,  R.  I.  & 

P  Ry.  Co., Mo.  App. ,  184 

S   W.  906. 

13.  Wichita  Falls  &  W.  Ry.  Co. 

V.  Asher, Tex.  Civ.  App. , 

171   S.  W.  1114. 


§  324]     Carmack    and    Cummins    Amendments.        565 

tory  or  District  of  Columbia,  or  from  any  point  in  the 
United  States  to  a  point  in  an  adjaceut  foreign  country. 
Carriers  tlierefore  engaged  in  transporting  i)roperty 
from  tlie  United  States  to  Mexico  or  Canada  are  subject 
to  the  statute;  but  even  as  amended,  tlie  act  does  not  in- 
clude all  carriers  subject  to  the  Interstate  Commerce 
Act,  for  those  engaged  in  ti'ansporting  property  in  for- 
eign commerce  other  than  to  adjacent  foreign  countries, 
are  not  included.  The  general  principles  determining 
who  are  carriers  witliin  the  meaning  of  the  Act  to  Regu- 
late Commerce  are  elsewhere  discussed  and  considered.^* 

§  323.  Interurban  Electric  Railroad  Subject  to 
Statute,  When.  An  interurban  electric  railroad  engaged 
in  interstate  commerce  by  accepting  freight  for  ship- 
ment to  a  point  in  another  state  is  within  the  Carmack 
amendment  although  its  line  only  runs  between  two 
points  in  the  same  state. ^^ 

§  324.  Carriers  Liable  for  Full  Actual  Loss,  Dam- 
age or  Injury  to  Ordinary  Live  Stock.  The  statute,  as 
changed  by  the  two  Cummins  amendments,  provides 
that  the  initial  carrier  shall  be  liable  for  the  full  actual 
loss,  damage  or  injury  to  ordinary  live  stock  caused 
by  it  or  by  any  connecting  carrier  notwithstanding  any 
limitation  of  liability  or  limitation  of  the  amount  of  re- 
covery or  representation  or  agreement  as  to  value  in  any 
receipt  or  bill  of  lading,  or  any  contract,  rule,  regulation, 
or  in  any  tariff  filed  with  the  Interstate  Commerce  Com- 
mission. Any  such  limitation,  without  respect  to  the 
manner  or  form  in  which  it  is  sought  to  be  made,  is 
declared  by  the  statute  to  be  unlawful  and  void.  The 
term  "ordinary  live  stock,"  as  used  in  the  statute,  in- 
cludes all  cattle,  swine,  sheep,  goats,  horses,  and  mules, 

14.  Chapter  6,  supra.  prove  that  the  electric  railroad  had 

15.  Ross  V.  Maine  Cent.  R.  Co.,  entered  into  a  common  control. 
112  Me.  63,  90  Atl.  711,  in  which  management  or  arrangement  for 
the  court  properly  held  that  the  a  continuous  carriage  or  shipment 
company  was  a  carrier  under  the  into  another  state.  See  section  90, 
statute,   but    erroneously   assumed  supra. 

that  the  plaintiff  was  required  to 


566  Duties    to    Interstate    Shippees.  [§  324 

except  such  as  are  chiefly  valuable  for  breeding,  racing, 
show  purposes,  or  other  special  uses. 

"It  is  clearly  the  purpose  of  the  Cummins  amend- 
ment, as  amended,  to  invalidate  all  limitations  of  lia- 
bility for  loss,  damage,  or  injury  to  ordinary  live  stock 
caused  by  the  initial  carrier  or  by  another  carrier  to 
which  shipment  may  be  delivered  or  which  may  partici- 
pate in  transporting  it,  notwithstanding  any  representa- 
tion or  agreement  or  release  as  to  value.  While  it  does 
not  appear  to -be  the  purpose  of  petitioners  to  attempt 
a  limitation  of  liability,  a  continuance  of  the  present 
method  of  stating  rates  for  ordinary  live  stock  would  re- 
quire a  representation  of  the  value,  which  is  declared  to 
be  unlawful.  The  act,  as  amended,  fixes  upon  the  car- 
rier liability  for  the  full  actual  loss,  damage,  or  injury 
caused  by  it  to  ordinary  live  stock  and  invalidates  any 
limitation  or  attempted  limitation  of  that  liability, 
wherever  or  in  whatever  form  it  is  found.  Ordi- 
nary live  stock  is  excepted  from  the  property  as  to 
which  we  are  empowered  to  authorize  or  require  the 
establishment  of  rates  dependent  upon  declared  or 
released  value.  If  rates  on  ordinary  live  stock  de- 
pendent upon  declared  value  could  lawfully  be  main- 
tained without  authorization  by  the  Commission,  there 
might  and  probably  would  be  instances  in  which 
conflict  would  arise  as  between  the  liability  imposed 
by  the  act  upon  the  carrier  and  the  prohibitions 
of  section  10  of  the  act  affecting  shippers.  We 
can  not,  in  view  of  the  provisions  of  the  law,  author- 
ize or  sanction  such  rates  upon  ordinary  live  stock; 
neither  can  they  lawfully  be  maintained  upon  any  other 
character  of  traffic  except  under  authorization  duly 
granted  by  the  Commission.  Under  such  authority  both 
shipper  and  carrier  are  fully  protected  and  the  full 
spirit  of  the  law  is  observed.  The  shipper  or  lawful 
holder  of  the  receipt  or  bill  of  lading  for  ordinary  live 
stock  should  be  free  to  press  his  claim  for  recovery  in 
full  for  loss,  damage,  or  injury  caused  by  the  carrier, 
and  rates  for  the  transportation  of  such  live  stock  may 
not  be  stated  in  a  manner  to  require  a  representation  of 
the  value.     This  is  not  saying  that  value  may  not  be 


§  325]     Carmack    and    Cummins    Amendments.         567 

considered  and  duly  weigliod  as  an  element  in  determin- 
ing what  reasonable  rates  shall  be  established.  As  to 
live  stock  the  order  herein  will  apply  only  to  that  which 
is  chiefly  valuable  for  breeding,  racing,  show  purposes, 
or  other  si)ecial  uses.  An  order  will  be  entered  authoriz- 
ing the  maintenance  of  existing  express  rates  dependent 
upon  the  declared  or  released  value  of  the  property 
transported,  except  ordinary  live  stock,  also  authorizing 
the  form  of  express  receipt  to  be  used.'"*^ 

§  325.  Limitations  of  Liability  Valid  as  to  Prop- 
erty Other  Than  Live  Stock,  When.  Prior  to  the  en- 
actment of  the  Cuniiiiins  aniendnieiits,  a  limitation  of  a 
carrier's  liability  for  loss  or  damage  even  when  due  to 
negligence,  to  a  valuation  agreed  u]xui  for  the  i)urpose 
of  determining  which  of  two  alternative  lawful  rates 
applied  to  a  particular  shipment  was  valid  under  the 
Carmack  amendment  as  to  all  classes  of  freight,  express 
and  baggage.^'  As  shown  in  the  foregoing  paragraph, 
no  such  limitations,  since  the  enactment  of  the  Cummins 
amendments,  are  invalid  as  to  ordinary  live  stock,  which 
includes  cattle,  swine,  sheep,  goats,  horses  and  mules, 
except  such  as  are  chiefly  valuable  for  breeding,  racing, 
show  purposes,  or  other  special  uses. 

But  as  to  all  other  property  shipped  in  interstate 
commerce  and  to  adjacent  foreign  countries,  such  limi- 
tations are  still  valid  even  under  the  Cummins  amend- 

16.  In  the  Matter  of  Express  S  508,  58  L.  Ed.  703,  34  Sup.  Ct. 
Rates,  Practices,  Accounts,  and  380,  8  N.  C.  C.  A.  53;  Chicago,  R 
Revenues,  43  I.  C.  C.  510.  I.  &  p.  R.  Co.  v.  Cramer,  232  U.  S 

17.  Cleveland,  C,  C.  &  St.  L.  490,  58  L.  Ed.  697,  34  Sup.  383: 
R.  Co.  V.  Dettlebach,  239  U.  S.  588,  Barrett  v.  City  of  New  York.  232 
60  L.  Ed.  453,  36  Sup.  Ct.  177;  U.  S.  14,  58  L.  Ed.  483.  34  Sup.  Ct 
George  N.  Pierce  Co.  ^.  WeUs  Far-  203;  Missouri.  K  &  T  R  Co  v 
go  &  Co.,  236  U.  S.  278.  59  L.  Ed.  Harriman,  227  U.  S  657  57  L  Ed* 
576.  35  Sup.  Ct.  351:    Atchison,  T.  (jg^^  33  g^p    ^^    3^^.    Chicago.  St. 


&  S.  F.  R.  Co.  V.  Robinson.  233  U. 
S.  173,  58  L.  Ed.  901.  34  Sup.  Ct 
556;    Boston  &  M.  R.  Co.  v.  Hook 


P.,  M.  &  O.  R.  Co.  V.  Latta.  226  U. 
S.  519,  57  L.  Ed.  328,  33  Sup.  Ct. 


er,  233  U.  S.  97,  58  L.  Ed.  868.  34  '^^^--     ^^^"^  ^''P-  ^o.  v.  Croning- 

Sup.  Ct.  526.  L.  R.  A.  1915B  450,  ^^-   226  U.  S.  491.  57  L.  Ed.  314.  33 

Ann.  Cas.  1915D  593;  Creat  North-  Sup.  Ct.  148,  44  L.  R.  A.  (N.  S.) 

ern  R.  Co.  v.  O'Connor,  232  U.  257. 


568  Duties    to    Interstate    Shippers.  [^  325 

ments,  when  expressly  authorized  by  the  Interstate  Com- 
merce Cow  mission.  For  the  statute  declares  that  the 
provisions  of  the  Cummins  amendments  making  the  car- 
riers liable  for  full  actual  loss,  damage  or  injury  shall 
not  apply  to  baggage  carried  on  passenger  trains  or 
boats,  or  trains  or  boats  carrying  passengers  anc]  to 
property,  except  ordinary  live  stock,  received  for  trans- 
portation concerning  which  the  carrier  shall  have  been 
or  shall  be  expressly  authorized  or  required  by  order  of 
the  Interstate  Commerce  Commission  to  establish  and 
maintain  rates  dependent  upon  the  value  declared  in 
writing  by  the  shipper  or  agreed  upon  in  writing  as  the 
released  value  of  the  property,  in  which  case  such  de- 
claration or  agreement  shall  have  the  effect  of  limiting 
liability  and  recovery  to  an  amount  not  exceeding  the 
value  so  declared  or  released.  The  statute  further  re- 
quires any  tariff  schedule  which  may  be  filed  with  the 
Interstate  Commerce  Commission  pursuant  to  such 
order,  to  contain  specific  reference  thereto,  and  may  al  so 
establish  rates  varying  with  the  value  so  declared  or 
agreed  upon.  The  Interstate  Commerce  Commission  is 
empowered  to  make  such  order  in  cases  where  rates  de- 
pendent upon  a  varying  with  declared  or  agreed  values, 
would,  in  its  opinion,  be  just  and  reasonable  under  the 
circumstances  and  conditions  concerning  the  transporta-" 
tion. 

§  326.  Stipulations  as  to  Notice  of  Claims  and 
Limitations  upon  Filing  of  Suits  Now  Regulated  by  Stat- 
ute. The  Cummins  amendments  provide  that  it  shall 
be  unlawful  for  any  common  carrier  to  provide  by  rule, 
contract,  regulation,  or  otherwise,  a  shorter  period  for 
giving  notice  of  claims  than  ninety  days,  and  for  the 
filing  of  claims  for  a  shorter  period  than  four  months, 
and  for  the  institution  of  suits  than  two  years;  but  if 
the  loss,  damage  or  injury  complained  of  was  due  to 
delay  or  damage  while  being  loaded  or  unloaded,  or  dam- 
aged in  transit  by  carlessness  or  negligence,  then  no 
notice  of  claim  or  filing  of  claim,  is  required  as  a  con- 
dition precedent  to  recovery. 


•^  326]     Car  MACK    and    Cummins    Amendments.         569 

Scores  of  decisions  by  federal  and  state  courts  con- 
struing the  original  Carmack  amendment  have,  in  ef- 
fect, been  overruled  by  the  foregoing  amendment.  Amoniz: 
these  decisions  are  Missouri,  K.  &  T.  R.  Co.  v.  Uarri- 
man^*  in  which  the  court,  construing  the  Carmack  amend- 
ment pi-ior  to  the  Cunmiins  amendment,  held  that  a 
stipulation  in  a  shi])i)ing  contract  ])roviding  that  no  suit 
shall  be  brought  after  the  lapse  of  ninety  days  from  the 
happening  of  any  loss  or  damage,  any  statute  or  limi- 
tation to  the  contrary  notwithstanding,  was  valid  as 
to  interstate  shipments;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Starbird,^"  wherein  the  court  held  that  a  stii)ulation 
in  a  bill  of  lading  providing  that  claims  for  damages 
must  be  reported  by  the  consignee  in  writing  to  the  de- 
livering line  within  thirty-six  hours  after  the  consignee 
had  been  notified  of  the  arrival  of  the  freight  at  the 
place  of  delivery,  and  if  such  notice  was  not  given,  nei- 
ther the  initial  nor  the  connecting  carrier  was  liable,  was 
valid  and  enforceable;  Chesapeake  &  O.  R.  Co.  v.  Mc- 
Laughlin,-'^ wherein  the  court  held  that  a  stipulation  in 
a  uniform  livestock  contract  declaring  that  the  carrier 
shall  not  be  liable  unless  claim  for  loss  or  damage  shall 
be  made  in  writing,  verified  by  aflidavit  and  delivered 
to  the  general  claim  agent  of  the  carrier  within  five 
days  from  the  time  the  livestock  is  removed  from  the 
car,  was  legal  and  binding  upon  the  shipper;  Northern 
Pac.  R.  Co.  V.  Wall,-^  wherein  the  court  held  that  a  re- 
quirement in  a  livestock  contract  that  a  claim  for  damag- 
es should  be  presented  within  five  days  from  the  time 
the  stock  was  removed  from  the  car,  was  reasonable. 
Decisions  of  similar  import  which  do  not  now,  in  view 
of  the  foregoing  amendment,  properly  declare  the  law  as 
to  interstate  shipments,  are  cited  in  the  notes.-^ 

18.  227  U.  S.  657.  57  L.  Ed.  G90.  R.  Co.  v.  Stone,  244  U.  S.  332,  61 
33  Sup.  Ct.  397.  L.  Ed.  1173,  37  Sup.  Ct.  633. 

19.  243  U.  S.  592.  r.l  L.  Ed.  917.  22.    Kentucky.  Armstrong  v.  111. 
37  Sup.  Ct.  462.  inois    Cent.    R.    Co.,    162    Ky.    539, 

20.  242  U.  S.  142,  61  L.  Ed.  207,  172  S.  W.  947. 

37  Sup.  Ct.  40.  Missouri,     Dunlap  v.  Chicago  & 

21.  241  U.  S.  87,  60  L.  Ed.  905,       A   R.  Co.,  187  Mo.  App.  201,  172  S. 
36    Sup.    Ct.    493.      See    also    Erie       W.  1178:    Joseph  v.  Chicago,  B.  & 


570  Duties    to    Interstate    Shippers.  [§  327 

§  327.  Statute  not  Applicable  to  Export  and 
Import  Shipments  to  and  from  Countries  not  Adjacent 
to  United  States.  The  provisions  of  the  Carmack 
ameiidnieiit  only  applied  to  shipments  of  property  from 
a  point  in  one  state  to  a  point  in  another  ;'-■■  but  as  modi- 
fied and  enlarged  by  the  Cummins  amendments,  its  terms 
include  the  shipments  of  i:)roperty  by  any  common  car- 
rier subject  to  the  Interstate  Commerce  Act  from  a  point 
in  one  state  or  territory  or  the  District  of  Columbia  to 
a  i^oint  in  another  state,  territory  or  District  of  Columbia, 
or  from  any  point  in  the  United  States  to  a  point  in  an 
adjacent  foreign  country.  As  the  Act  as  amended  makes 
no  reference  to  shipments  from  a  point  in  the  United 
States  to  a  point  in  nonadjacent  foreign  country,  or 
from  a  nonadjacent  foreign  country  to  a  point  in  the 
United  States,  its  provisions  do  not,  therefore,  apply 
to  export  and  import  shipments  to  and  from  foreign 
countries  not  adjacent  to  the  United  States."* 

Q.  R.  Co..  175  Mo.  App.  18,  157  S.  V.  Great  Northern  R.  Co.,  159  Wis. 

W.  837.  429,  150  N.  W.  484. 

New  Jersey.     Spada  v.  Pennsyl-  24.     In  re  the  Cummins  Amend- 

vania  R.  Co.,   86  N.  J.  L.  187,  92  ment,  33  I.  C.  C.  682,  in  which  the 

Atl.  379.  Commission      said:        "Does      the 

Oklahoma.  St.  Louis  &  S.  F.  R.  amendment  to  the  act  apply  to  ex- 
Co.  V.  Pickens, Okla. .  151  port  and  import  shipments  to  and 

Pac.    1055;     St.   Louis  &   S.   F.   R.  from    foreign    countries   not   adja- 

Co.  V.  Zickafoose,  39  Okla.  302.  6  cent  to   the   United   States?     This 

N.  C.  C.  A.  717,  135  Pac.  406.  must  be  answered  in  the  negative 

Virginia.       Old  Dominion   S.   S.  in    view    of    the    fact    that,    while 

Co.  V.  C.  F.  Flanary  &  Co.,  Ill  Va.  specifically  stating  that  its  terms 

816,  69  S.  E.  1107.  shall    apply    to    property    received 

23.     J.  H.  Hamlen  &  Sons  v.  Ill-  for    transportation     from     certain 

inois  Cent.  R.  Co.,  212   Fed.   324;  points  to  certain   other   points,   it 

Aldrich  v.  Atlantic  Coast  Line  R.  makes  no  reference  to  shipments 

Co.,  104   S.  C.   364,  89   S.  E.   315:  from  a  point  in  the  United  States 

H6uston  East  &  W.  T.  R.   Co.  v.  to  a  point  in  a  nonadjacent  foreign 

Inman,    Akers    &   Inman,    63    Tex.  country  or  from  a  nonadjacent  for- 

Civ.  App.  55G,  134  S.  W.  275;   Best  eign  country." 


CHAPTER  XVII 

Basis,    Natuhk    and    Extknt   of    ]jIabilitv    IJmdkk    Cah- 

MACK    AmKNDMKNT   As   AmKNDKD. 

Sec.  328.     Liability  Imposed   by  Statute  is  that  of  Common  I^aw   Doc- 
trines Governing  Duties  of  Carriers. 
Sec.  329.     Ancient  Common  Law  and  Modern  Exceptions  to  Liabilities 

of  Common  Carriers. 
Sec.  3.30.     Interstate  Carriers  may  Contract  Against  Loss  by  Fire  not 

Due  to  Negligence. 
Sec.  330a.  Stipulations   Exonerating  Carrier  from   its  Own   Negligence 

Invalid  though  Filed  with  Commission. 
Sec.  331      Proviso    Reserving   all   Remedies   under   Existing   Laws   Re- 
lates Solely  to  Remedies  under  Federal  Laws. 
Sec.  332.     Duties   and   Obligations   of   Initial   Carrier   Commence   with 

Delivery  of  Property  for  Transportation. 
Sec.  333.     Effect  of  Failure  or  Refusal  of  Initial  Carrier  to  Issue  Bill 

of  Lading. 
Sec.  334.     Term    "Lawful    Holder"    of   Bill    of    Lading   not   Limited    to 

Owner  of  Property  Transported. 
Sec.  335.     Bill    of    Lading    Issued    by    Initial    Carrier    Governs    Entire 

Transportation — Second  Bill  Void. 
Sec.  336.     Statute  Embraces  Damages  due  to  delay  as  well  as  for  Loss 

or  Injury  In  Course  of  Transportation. 
Sec.  337.     Wrongful  Delivery  by  a  Terminal  Carrier  a  "Loss"  Within 

Meaning  of  Statute. 
Sec.  338.     Initial  Carriers  Liable  for  Property  Held  by  Terminal  Car 

rier  as  Warehouseman — Conflicting  Decisions. 
Sec.  339.  Nature  of  Carrier's  Liability  as  Warehouseman. 
Sec.  340.     Quantum   of  Proof  Necessary   to   Establish   Liability   under 

Federal  Statute. 
Sec.  341.     Federal  Rule  as  to  Negligent  Delay  Co-operating  with  Act 

of  God  in  Destruction  of  Property. 
Sec.  342.     Connecting   and    Terminal   Carriers   Liable    Under   Carmack 

Amendment  as  Amended,  When. 
Sec.  343.     Connecting   and   Terminal   Carriers   not   Liable   for   Acts   of 

Initial  Carrier. 
Sec.  344.     Presumption    that    Loss    or    Damage    Occurred    on    Line    of 

Terminal  Carrier — Contrary.  Rulings. 
Sec.  345.     Last  Carrier  not  Liable  In  Absence  of  Proof  of  Damage  on 

its  Line. 
Sec.  346.  Effect  of  Rerouting  or  Change  of  Destination  upon  Liability 

of  Initial  Carrier. 
Sec.  347.     Carriers  May  Limit  Liability  for  Value  of  Property  at  Time 

and  Place  of  Shipment. 
Sec.  348.     Provisions  of  Shipper's  Contract    with   initial  Carrier  inure 

to  Benefit  of  Connecting  Carrier. 

(571) 


Di'j: 


Duties    to    Interstate    Shippers. 


[^  328 


§  328.  Liability  Imposed  by  Statute  is  that  of  Com- 
mon Law  Doctrines  Governing  Duties  of  Carriers.  The 
initial  carrier  is  made  liable  under  the  statute  as  amend- 
ed to  any  holder  of  a  bill  of  lading  for  any  loss,  damage 
or  delaj^  to  such  property  caused  by  it  or  by  any  con- 
necting carrier  to  whom  the  property  may  be  delivered. 
The  liability  thns  imposed  plainly  implies  a  liability 
for  some  default  in  its  common  law  duty  as  a  common 
carrier.^    The  Carmack  amendment  has  not  changed  the 


1.  Adams  Exp.  Co.  v.  Croninger, 
226  U.  S.  491,  57  L.  Ed.  314,  33  Sup. 
Ct.  148,  44  L.  R.  A.  (N.  S.)  257. 
"What  is  the  liability  imposed 
upon  the  carrier?"  said  the  court, 
"It  is  a  liability  to  any  holder  of 
the  bill  of  lading  which  the  pri- 
mary carrier  is  required  to  issue 
'for  any  loss,  damage  or  injury  to 
such  property  caused  by  it,'  or  by 
any  connecting  carrier  to  whom 
the  goods  are  delivered.  The  sug- 
gestion that  an  absolute  liability 
exists  for  every  loss,  damage  or 
injury,  from  any  and  every  cause, 
would  be  to  make  such  a  carrier  an 
absolute  insurer  and  liable  for  un- 
avoidable loss  or  damage  though 
due  to  uncontrollable  forces.  To 
give  such  emphasis  to  the  words, 
'any  loss  or  damage.'  would  be  to 
ignore  the  qualifying  words, 
'caused  by  it.'  The  liability  thus 
imposed  is  limited  to  'any  loss, 
injury  or  damage  caused  by  it  or 
a  succeeding  carrier  to  whom  the 
property  may  be  delivered,'  and 
plainly  implies  a  liability  for  some 
default  in  its  common  law  duty  as 
a  common  carrier." 

"The  liability  imposed  by  the 
statute  is  the  liability  irnppsed  by 
•iiOBHfton — laj^  upon  common  car- 
riers." Missouri,  K.  &  T.  R.  Co.  v. 
Harriman,  227  U.  S.  S.  657,  57  L. 
Ed.  690,  33  Sup.  Ct.  397. 


"The  loss  being  established,  the 
liability  of  the  initial  carrier  was 
not  dependent  upon  the  plaintiff's 
proof  that  such  loss  was  caused  by 
either  the  initial  or  connecting 
carrier.  Defendant's  liability  was 
the  common-law  liability  of  a  car- 
rier, and  it  was  not  incumbent  up- 
on plaintiff  to  show  that  an  act 
of  the  carrier  occasioned  the  loss." 
Chicago  &  E.  I.  R.  Co.  v.  Collins 
Produce  Co.,  149  C.  C.  A.  169,  235 
Fed.  857,  14  N.  C.  C.  A.  917. 

"The  purpose  of  this  amend- 
ment, *  *  *  is  to  make  the 
primary  carrier  liable  as  at  com- 
mon law  for  a  loss  of  the  property 
occurring  upon  the  line  of  its 
agents,  the  connecting  carrier  or 
carriers,  the  same  as  if  it  had  oc- 
curred upon  its  own  line."  Storm 
Lake  Tub  &  Tank  Factory  v.  Min- 
neapolis &  St.  L.  Ry.  Co.,  209  Fed. 
895. 

"In  other  words,  the  common  law 
rule  of  liability  was  not  changed 
by  the  act.  That  rule  was  not 
limited  to  negligence,  but  went  be- 
yond that  and  made  the  carrier  lia- 
ble for  any  loss  or  damage  not  the 
act  of  God  or  the  public  enemy. 
*  *  *  The  purpose  of  the  act 
was  to  make  the  first  carrier  liable 
as  at  common  law."  Cudahy  Pack- 
ing Co.  v.  Atchison,  T.  &  S.  F.  R. 
Co.,  193  Mo.  App.  572,  187  S.  W. 
149. 


§  328]     Duties    Undkr    (/armack    Amendment.         573 

common  law  doctrine  in  respect  to  a  earrioi's  liability 
for  loss  oeeurrinff  on  its  own  line.^ 

Tlio  sani(.'  liability  of  tlio  initial  carrier  ii])()n  its 
own  line  is  imposed  upon  it  as  to  any  loss  or  damage 
on  the  lines  of  a  connecting-  carrier.'  "  riulor  the  C'ar- 
mack  amendment,"  said  the  court  in  the  Wallace  case, 
"as  already  construed  in  the  Riverside  Mills  Case, 
wherever  the  carrier  voluntarily  accepts  goods  for  shi])- 
ment  to  a  point  on  another  line  in  another  State,  it  is 
conclusively  treated  as  having  made  a  through  contract. 
It  thereby  elected  to  treat  the  connecting  carriers  as 
its  agents,  for  all  purposes  of  transportation  and  deliv- 
ery. This  case,  then,  must  be  treated  as  though  the 
point  of  destination  was  on  its  own  line,  and  is  to  be 
governed  by  the  same  rules  of  pleading,  practice  and 
presumption  as  would  have  applied  if  the  shipment  had 
been  between  stations  in  different  States,  but  both  on 
the  Company's  railroad.  Thus  considered,  when  the 
holders  of  the  bills  of  lading  proved  the  goods  had  not 
been  delivered  to  the  consignee,  the  presumption  arose 
that  they  had  been  lost  by  reason  of  the  negli- 
gence of  the  carrier  or  its  agents.  The  burden  of  proof 
that  the  loss  resulted  from  some  cause  for  which  the 
initial  carrier  was  not  responsible  in  law  or  by  con- 
tract was  then  cast  upon  the  carrier.  The  plaintiffs 
were  not  obliged  to  prove  their  case  and  to  disprove  the 
existence  of  a  defense.  The  carrier  and  its  agents,  hav- 
ing received  possession  of  the  goods,  were  charged  with 
the  duty  of  delivering  them,  or  explaining  why  that 
had  not  been  done.  This  must  be  so,  because  carriers 
not  only  have  better  means,  but  often  the  only  means,  of 

"The  object  of  the  words  that  some  default  in  its  common  law 
the  carrier,  'shall  be  liable  to  the  duty  as  a  common  carrier.'  "  Col- 
lawful  holder  thereof  for  any  loss,  lins  v.  Denver  &  R.  G.  R.  Co.,  181 
damage  or  injury  to  such  proper-  Mo.  App.  213.  167  S.  W.  1178. 
ty  caused  by  it'  was  not  to  make  2.  Cincinnati.  N.  O.  &  T.  P.  R. 
the  carrier  absolutely  responsible  Co.  v.  Rankin,  241  U.  S.  319,  60 
for  all  happenings  though  alto-  L.  Ed.  1022.  36  Sup.  Ct.  5.55,  L.  R. 
gether    uncontrollable.       The     ob-  A.   1917A  26.5. 

ject    was    rather    to    prevent    that  3.     Galveston,  H.  &  S.  A.  R.  Co. 

degree    of    liability.      The    statute  v.  Wallace,  223  U.  S.  481,  56  L.  Ed. 

'plainly     implies     a     liability     for  516,  32  Sup.  Ct.  205. 


574 


Duties    to    Interstate    Shippers. 


[^  328 


making  such  proof.  If  the  failure  to  deliver  was  due 
to  the  act  of  God,  the  public  enemy  or  some  cause 
against  which  it  might  lawfully  contract,  it  was  for  the 
carrier  to  bring  itself  within  such  exception.  In  the 
absence  of  such  proof,  the  plaintiffs  were  entitled  to 
recover,  and  the  judgment  is  affirmed."* 

§  329.  Ancient  Common  Law  and  Modern  Excep- 
tions to  Liabilities  of  Common  Carriers.  Under  the  com- 
mon law  as  expounded  in  the  courts  of  England,  a  com- 
mon carrier  was  liable  for  all  losses  to  goods  while  in 
its  possession  although  not  due  to  negligence  on  its 
part  except  when  they  arose  either  from  the  act  of  God 
or  the  public  enemy.  These  were  the  sole  exceptions.' 
But  in  the  gradual  development  of  the  law  in  relation  to 
carriers,  courts,  in  furtherance  of  justice,  found  it  neces- 
sary to  add  other  exceptions,  and  so,  where  the  loss  was 
caused  by  some  act  of  the  shipper,  the  carrier  was  re- 
lieved of  liability.*'  Thus,  while  a  common  carrier  who 
receives  goods  for  shipment  is  required  to  deliver  the 
goods  according  to  its  agreement,  yet  when  the  owner 
of  the  goods  accompanies  them,  the  carrier  is  not  liable 


4.  "A  prima  facie  case  is  made 
by  showing  a  delivery,  in  good 
condition  and  properly  packed,  to 
the  carrier  and  the  subsequent  de- 
livery after  transportation  in  bad 
condition."  Cudahy  Packing  Co. 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  193 
Mo.  App.  572,  187  S.  W.  149. 

5.  United  States.  Memphis  & 
C.  R.  Co.  V.  Reeves,  10  Wall.  (U. 
S.)  176,  19  L.  Ed.  909. 

Connecticut.  Hale  v.  New  Jersey 
Steam  Nav.  Co.,  15  Conn.  539,  39 
Am.  Dec.  398. 

Missouri.  Cudahy  Packing  Co. 
V.  Atchison,  T.  &  S.  F.  Ry.  Co., 
193  Mo.  App.  572,  187  S.  W.  149; 
Bowles  V.   Quincy,   O.   &  K.  C.   R. 

Co.,  Mo.  App.  ,  187  S.  W. 

131;  Davis  V.  Wabash,  St.  L.  & 
P.  Ry.  Co.,  89  Mo.  340,  1  S.  W.  327. 

New    York.      Gardiner    v.    New 


York  Cent.  &  H.  River  R.  Co.,  139 
N.  Y.  App.  Div.  17,  123  N.  Y.  Supp. 
865;  Holsapple  v.  Rome,  W.  &  O. 
R.  Co.,  86  N.  Y.  275;  Michaels  v. 
New  York  Cent.  R.  Co.,  30  N.  Y. 
564,  86  Am.  Dec.  415. 

Oklahoma.  St.  Louis  &  S.  F.  R. 
Co.  V.  Zickafoose,  39  Okla.  302,  6 
N.  C.  C.  A.  717,  135  Pac.  406;  Mis- 
souri, K.  &  T.  R.  Co.  V.  Hancock  & 
Goodbar,  26  Okla.  265,  109  Pac. 
223;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Wehrman,  25  Okla.  147,  105  Pac. 
328. 

6.  United  States,  Ogdensburg 
&  L.  C.  R.  Co.  V.  Pratt,  22  Wall.  (U. 
S.)   123,  22  L.  Ed.  827. 

Florida.  Seaboard  Air  Line  Ry. 
Co.  V.  Mullin,  70  Fla.  450,  11  N.  C. 
C.  C.  1,  L.  R.  A.  1916D  982,  Ann. 
Cas.  1913A  576,  70  So.  467. 


<^  329]     Duties    Under    Carmack    Amendment.         575 

for  any  injury  or  loss  to  the  jc^oods  that  may  occur 
through  the  act  of  th(3  owner  or  through  any  agency 
that  is  under  the  exclusive  control  of  the  owner/  Like- 
wise, the  courts  found  it  necessary  to  ingraft  other  ex- 
ceptions, and  declared  that  wliere  the  loss  was  occasioned 
by  the  act  of  the  public  authorities,  the  carrier  should 
not  be  held  liable.**  For  exami)le,  it  has  been  held  that 
seizure  of  the  goods  by  military  force  in  obedience  to 
military  orders  is  a  defense."  It  is  also  now  well  estab- 
lished that  where  the  injuries  to  or  loss  of  the  goods 
resulted  from  the  inherent  defects  or  essential  qualities 
of  the  articles  of  merchandise,  the  carrier  is  relieved 
from  liability.^" 


Indiana.  Terre  Haute  &  L.  R. 
Co.  V.  Sherwood,  132  Ind.  129,  17 
L.  R.  A.  339,  32  Am.  St.  Rep.  239, 
31  N.  E.  781. 

Iowa.  Grieve  v.  Illinois  Cent.  R. 
Co.,  104  Iowa  659,  74  N.  W.  192; 
Hart  V.  Chicago  &  N.  W.  R.  Co.,  69 
Iowa  485,  29  N.  W.  597. 

Massachusetts.  Pratt  v.  Ogdens- 
burg  &  L.  C.  R.  Co.,  102  Mass.  557. 

Michigan.  Frohlick  Glass  Co. 
V.  Pennsylvania  Co.,  138  Mich. 
116,  110  Am.  St.  Rep.  310,  4  Ann. 
Cas.  1140,  101  N.  W.  223;  Heller 
V.  Chicago  &  G.  T.  Ry.  Co.,  109 
Mich.  53,  63  Am.  St.  Rep.  541,  60 
N.  W.  667. 

Mississippi.  Johnson  v.  Alabama 
&  V.  Ry.  Co.,  69  Miss.  191  30  Am. 
St.  Rep.  534,  11  So.  104. 

Missouri.  Nunnelee  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.,  145  Mo.  App.  17, 
129  S.  W.  762. 

New  York.  Harris  v.  Northern 
Indiana  R.  Co.,  20  N.  Y.  232. 

Tennessee.  American  Lead  Pen- 
cil Co.  V.  Nashville.  C.  &  St.  L.  Ry. 
Co.,  124  Tenn.  57,  32  L.  R.  A.  (N. 
S.)  323,  134  S.  W.  613. 

Vermont.  Ross  v.  Troy  &  B.  R. 
Co.,  49  Vt.  364,  24  Am.  Rep.  144. 

7.  Nunnelee  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  supra. 


8.  Simpson  v.  Dufour,  126  Ind. 
322,  22  Am.  St.  Rep.  590,  26  N.  E. 
69;  Kiff  V.  Old  Colony  &  N.  R.  Co.. 
117  Mass.  591,  19  Am.  Rep.  429: 
Merriman  v.  Great  Northern  Exp. 
Co.,  63  ]\Iinn.  543,  65  N.  W.  1080: 
Bliven  v.  Hudson  River  R.  Co.,  36 
N.  Y.  403. 

9.  Nashville  &  C.  R  Co.  v.  J.  N. 
Estes,  10  Lea  (Tenn.)  749,  78 
Tenn.  605. 

10.  United  States.  Lawrence  v. 
Denbreens,  1  Black  (U.  S.)  170,  17 
L.  Ed.  89. 

Alabama.  Southern  Exp.  Co.  v. 
Ashford,  120  Ala.  591,  28  So.  732. 

Connecticut.  Coupland  v.  Housa- 
tonic  R.  Co.,  61  Conn.  531,  15  L.  R. 
A.  534,  23  Atl.  870. 

Iowa.  Gilbert  Bros.  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  1.56  Iowa  440,  136 
N.  W.  911. 

Maryland.  Baltimore  &  0.  R. 
Co.  V.  Dever,  112  Md.  296,  26  L. 
R.  A.  (N.  S.)  712,  21  Ann.  Cas. 
109,  75  Atl    352. 

Massachustts.  Evans  v.  Fitch- 
burg  R.  Co.,  Ill  Mass.  142,  15  Am. 
Rep.  19. 

Missouri.  Cudahy  Packing  Co. 
v.  Atchison.  T.  &  S.  F.  R.  Co.,  193 
Mo.  App.  572.  187  S.  W.  149;  Lib- 
by  v.  St.  Louis,  I.  :m.  &  S.  R.  Co., 


576 


Duties    to    Interstate     Shippers. 


[§  330 


§  330.  Interstate  Carriers  may  Contract  Against 
Loss  by  Fire  not  Due  to  Negligence.  A  carrier  cauiiot 
make  a  bindini;-  agreement  stipulating  against  its  own 
negligence  or  that  of  its  servants.''  But  it  may,  by  con- 
tract," limit  its  liability  for  loss  or  damage  not  result- 
ing from  its  negligence  or  that  of  its  employes.  It 
follows  that  it  can  limit  its  liability  by  stipulating  in 
the  contract  of  carriage  against  loss  due  to  destruction 
or  damage  to  property  in  its  custody  as  a  carrier  by 
tire  when  not  attributable  to  its  negligence.''    And  such 


137  Mo.  App.  276.  117  S.  W.  659. 

Montana.  Wahle  v.  Great  North- 
ern R.  Co..  41  Mont.  326,  109  Pac. 
713. 

New  Hampshire.  Faucher  v.  Wil- 
son, 68  N.  H.  338,  39  L.  R.  A.  431. 
38  Atl.  1002. 

North  Carolina.  Currie  v.  Sea- 
board Air  Line  R.  Co.,  156  N.  C. 
432,  72  S.   E.  493. 

11.  United  States.  Pierce  Co. 
V  Wells  Fargo  &  Co..  236  U.  S. 
278,  59  L.  Ed.  576,  35  Sup.  Ct. 
351;  Kansas  City  Southern  R. 
Co.  V.  Carl,  227  U.  S.  637,  57  L. 
Ed.  683,  33  Sup.  Ct.  391;  Adams 
Exp.  Co.  V.  Croninger,  226  U.  S. 
491,  57  L.  Ed.  314,  33  Sup.  Ct.  148, 
44  L.  R.  A.  (N.  S.)  257;  Hart  v. 
Pennsylvania  R.  Co.,  112  U.  S. 
331,  28  L.  Ed.  717,  5  Sup.  Ct.  151. 
Massachusetts.  Bernard  v. 
Adams  Exp.  Co..  205  Mass.  254  28 
L  R.  A.  (N.  S.)  293,  18  Ann.  Cas. 
351.  91  N.  E.  325. 

New  York.  Jennings  v.  Grand 
Trunk  Ry.  Co.,  52  Hun  (N.  Y.) 
227,  5  N.  Y.  Supp.  140. 

North  Carolina.  Pace  Mule  Co. 
V.  Seaboard  Air  Line  R.  Co.,  160 
N.  C.  215,  76  S.  E.  513. 

North  Dakota.  Cook  v.  Northern 
Pac.  R.  Co.,  32  N.  D.  340,  L.  R.  A. 
1916D  345.  155  N.  W.  867. 

Tennessee.  Drake  v.  Nashville, 
C.  &  St.  L.  R.  Co.,  125  Tenn.  627, 
148  S.  W.  214. 


Vermont.  Piper  v.  Boston  &  M. 
R.  R.,  90  Vt.  176,  97  Atl.  508. 

West  Virginia.  Bosley  v.  Balti- 
more &  O.  R.  Co.,  54  W.  Va.  563,  66 
L.  R.  A.  871,  46  S.  E.  613. 

12.  York  Mfg.  Co.  v.  Illinois 
Cent.  R.  Co.,  3  WaU  (U.  S.)  107, 
18  L.  Ed.  170,  in  which  the  court 
said:  "The  law  prescribes  the 
duties  and  responsibilities  of  the 
common  carrier.  He  exercises,  in 
one  sense,  a  public  employment, 
and  has  duties  to  the  public  to  per- 
form. Though  he  may  limit  his 
services  to  the  carriage  of  par- 
ticular kinds  of  goods,  and  may 
prescribe  regulations  to  protect 
himself  against  imposition  and 
fraud,  and  fix  a  rate  of  charges 
proportionate  to  the  magnitude  of 
the  risks  he  may  have  to  encoun- 
ter, he  can  make  no  discrimina- 
tion between  persons,  or  vary  his 
charges  from  their  condition  or 
character.  He  is  bound  to  accept 
all  goods  offered  within  the  course 
of  his  employment,  and  is  liable 
to  an  action  in  case  of  refusal.  He 
is  chargeable  for  all  losses  except 
such  as  may  be  occasicned  by  the 
act  of  God  or  the  public  enemy. 
He  insures  against  all  accidents 
which  result  from  human  agency, 
although  occurring  without  any 
fault  or  neglect  on  his  part;  and 
he  cannot,  by  any  mere  act  of  his 
own,      avoid      the      responsibility 


§  330]     Duties    Under    Carmack     Amendment.         577 

stipulations  may  be  enforced  as  to  interstate  shipments 
witliin  the  purview  of  tlie  Carmack  amendment.''  "We 
cannot  say  that  there  is  anything  in  the  a])Ovo-quoted 
provisions  of  the  Interstate  Commerce  Law,"  said  the 
court  in  the  Patterson  case,  cited,  "that  would  change 
or  interfere  with  tlie  operation  of  the  last-stated,  well- 
settled,  declared  rule  of  law  in  this  state,  or,  to  state 
the  proposition  substantively,  as  applicable  here,  be  in 
the  way  of  a  carrier's  contracting  against  loss  by  tire 
not  due  to  its  own  negligence  as  a  contravention  of  the 
terms  of  the  federal  statute.  It  will  be  noted  that  the 
section  of  the  act  (20)  relied  upon  by  appellee  as  pro- 
hibiting the  carrier  from  contracting  against  or  limit- 
ing its  liability  in  this  particular  provides  that  the  re- 
ceiving carrier  shall  be  liable  for  any  loss,  damage,  or 
injury  to  such  property  'caused  by  it'  on  any  connecting 
carrier,  and  that  such  carrier  cannot  by  receipt,  rule, 
or  regulation  exempt  itself  or  connecting  carrier  from 
the  liability,  hereby,  imposed.  Plainly  the  liability  im- 
posed which  the  statute  inhibits  being  limited  or  con- 
tracted against,  has  reference  to  the  loss  or  damage  caus- 
ed by  the  receiving  or  any  connecting  carrier,  and,  it  be- 
ing the  loss  or  damage  thus  occasioned  that  the  carrier 
is  prohibited  from  contracting  against,  there  is  no  reason- 
able construction  that  can  be  given  to  the  language  used 
that  would  so  broaden  its  meaning  as  to  include  any 
and  every  loss  or  damage  without  regard  to  its  having 
been  caused  by  the  wrong  or  negligence  of  the  carrier, 
and  make  the  carrier  an  insurer  having  no  right  to 
limit  or  contract  against  liability  where  the  loss  or 
damage  is  occasioned  without  negligence  of  any  kind 

which  the  law  thus  imposes.     He  qualified  when  he  expressly  stipu- 

cannot    screen    himself    from    lia-  lates  for  the  restriction  and  quali- 

bility  by   any   general   or   special  fication.     But  when  such  stipula- 

notice,  nor  can  he  coerce  the  own-  tion    is   made,   it   does   not   cover 

er  to  yield  assent  to  a  limitation  losses  from  negligence  or  miscon- 

of    responsibility    by    making    ex-  duct,  we  can  perceive  no  just  rea- 

orbitant  charges  when  such  assent  son    for    refusing    its    recognition 

is  refused.    The  owner  of  the  goods  and  enforcement." 

may    rely    upon    this    responsibil-  13.    Central  of  Georgia  R.  Co.  v. 

ity  imposed  by  the  common  law,  Patterson,  12  Ala.  App.  369,  68  So. 

which  can  only  be  restricted  and  513. 

1    Coutrul    Curiiera    37 


978  Duties    to    Interstate    Shippers.  [§  330 

oil  its  part,  as  is  the  appellee's  insistence.  We  do  not 
think  there  is  anything  in  tlie  wording,  or  the  evident 
purpose  and  intent  to  be  gathered  from  context,  of  the 
federal  statute  under  consideration,  that  would  justify 
the  construction  of  giving  to  it  the  effect  of  changing 
the  established  rule  of  law  with  respect  to  a  carrier's 
right  to  limit  or  qualify  by  special  contract  its  common 
law  liability  as  an  insurer  as  against  loss  or  damage  of 
goods  in  its  custody  for  carriage,  occasioned  by  acts 
beyond  its  control,  and  not  attributable  in  any  way  to 
its  own  misconduct  or  negligence  or  that  of  its  servants. 
There  is  nothing  at  variance  with  the  construction  we 
have  placed  on  section  20  of  the  Interstate  Commerce 
Act  in  the  holding  by  the  United  States  Supreme  Court 
in  the  case  of  the  Atlantic  Coast  Line  R.  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  31  Sup.  Ct.  164,  55  L. 
Ed.  167,  31  L.  R.  A.  (N.  S.)  7,  relied  upon  by  the  ap- 
pellee. The  plain  object  and  purpose  of  the  section  in 
question  is  to  require  the  receiving  carrier  to  issue  a 
bill  of  lading  to  destination  for  the  property  to  be  car- 
ried, and  to  make  it  liable  as  principal  for  damage  or 
loss  'caused  by  it,'  i.e.,  resulting  from  the  negligence 
of  the  carrier  or  its  servants,  or  that  of  any  of  the 
carriers,  over  whose  lines  the  property  passes,  and  to 
inhibit  it  from  contracting  against  that  liability.  The 
holding  in  the  Atlantic  Coast  Line  case,  supra,  in  ef- 
fect that  such  a  provision  making  a  principal  liable 
for  the  agencies  it  uses  in  transportation,  and  providing 
that  this  liability  cannot  be  contracted  against,  is  a  valid 
statute  not  violative  of  constitutional  guarantees.  There 
is  nothing  in  the  holding  of  that  case,  as  we  read  it,  to 
support  the  appellee's  contention  that  the  act  changes 
the  rule  of  law  that  a  carrier  may  contract  against  loss 
or  damage  not  due  to  negligence  on  the  part  of  itself 
or  servants,  and  it  is  not,  therefore,  an  authority  in 
point  on  the  proposition  presented  here." 

No.  330a.  Stipulations  Exonerating  Carrier  from 
its  Own  Negligence  Invalid  Though  Filed  with  Commis- 
sion. Contracts  of  shipment  in  contravention  of  the 
settled  principles  of  the   common  law   preventing   the 


§331]     DiriKs    Under    Carmack    Amendment.         579 

carrier  from  contracting  against  liability  for  loss  or 
damage  resulting  from  his  own  negligence,  are  invalid 
The  fact  that  such  contracts  have  been  filed  with  the  Inter- 
state Commerce  Commission  does  not  modify  this  rule. 
For  example,  a  stijDulation  in  a  live  stock  contract  thai 
in  the  event  of  any  unusual  delay  or  detention  of  the 
live  stock  caused  by  the  negligence  of  the  carrier,  the 
shipper  agrees  to  accept  as  full  compensation  for  all 
loss  or  damage  sustained  thereby  the  amount  actually 
expended  by  the  shipper  in  the  purchase  of  food  and 
water  while  so  detained,  was  void  although  the  agree- 
ment was  made  in  consideration  of  a  reduced  rate  under 
a  uniform  live  stock  contract  duly  filed  with  the  Inter- 
state Commerce  Commission.  "This  stipulation,"  said 
the  court, "«" contravenes  the  principle  that  the  carrier 
may  not  exonerate  itself  from  losses  negligently  caused 
by  it,  and  is  not  within  the  principle  of  limiting  lia- 
bility to  an  agreed  valuation  which  has  been  made  the 
basis  of  a  reduced  freight  rate.  Such  stipulations  as 
are  here  involved  are  not  legal  limitations  upon  the 
amount  of  recovery,  but  are  in  effect  attempts  to  limit 
the  carrier's  liability  for  negligence  by  a  contract  which 
leaves  practically  no  recovery  for  damages  resulting 
from  such  negligence.  AVhile  this  provision  was  in  the 
bill  of  lading,  the  form  of  which  was  filed  with  the  rail- 
road company's  tariffs  with  the  Interstate  Commerce 
Commission,  it  gains  nothing  from  that  fact.  The  legal 
conditions  and  limitations  in  the  carrier's  bill  of  lading 
duly  filed  with  the  Commission  are  binding  until 
changed  by  that  body  (Kansas  Southern  Rv."  Co.  v. 
Carl,  227  U.  S.  639,  33  Sup.  Ct.  391,  57  L.  Ed.  683) ;  but 
not  so  of  conditions  and  limitations  which  are,  as  is 
this  one,  illegal,  and  consequently  void." 

§  331.  Proviso  Reserving  all  Remedies  under  Ex- 
isting Laws  Relates  Solely  to  Remedies  under  Federal 
Laws.  A  proviso  to  the  Cummins  amendment  provides 
that  nothing  in  the   section   (section  20  of  the  Act   to 

l:ia.      Boston    &    1\I.    R.    Co.    v.  Piper,  IT.  s.  ,  62  L.   Ed. 

,  38  Sup.  Ct.  354. 


580 


Duties    to    Interstate    Shippers. 


[^  331 


Regulate  Commerce)  shall  deprive  any  holder  of  such 
receipt  or  bill  of  lading  of  any  remedy  or  right  of  action 
which  he  has  under  the  existing  law.  But  Hiis  proviso, 
however,  does  not  refer  to  or  continue  in  force  rights 
and  remedies  given  under  the  common  law  of  a  state  or 
under  state  statutes.  It  refers  solely  to  existing  federal 
laws  in  effect  at  the  time  the  cause  of  action  accrued." 
''But  it  has  been  argued  that  the  non-exclusive  charac- 
ter of  this  regulation  is  manifested  by  the  proviso  of 
the  section,  and  that  state  legislation  upon  the  same  sub- 
ject is  not  superseded,  and  that  the  holder  of  any  such 
bill  of  lading  may  resort  to  any  right  of  action  against 
such  a  carrier  confeiTed  by  existing  state  law.  This 
view  is  untenable.  It  would  result  in  the  nullification 
of  the  regulation  of  a  national  subject  and  operate  to 
maintain  the  confusion  of  the  diverse  regulation  which 
it  was  the  purpose  of  Congress  to  put  an  end  to.  What 
this  court  said  of  section  22  of  this  act  of  1906  in  the 
case  of  Texas  &  Pac.  Ry.  v.  Abilene  Cotton  Mills,  204 
U.  S.  426,  is  applicable  to  this  contention.  It  was 
claimed  that  that  section  continued  in  force  all  rio-hts 


6  S.  E. 

Grand 
59, 


Co.   V. 


14,  United  States.  Storm  Lake 
Tub  &  Tank  Factory  v.  Minneap- 
olis &  St.  L.  R.  Co.,  209  Fed.  895. 

Georgia.      Southern    Ry.    Co.    v. 
Bennett,  17  Ga.  App.  162,  8 
418. 

Illinois.      Pennington    v. 
Trunk  Western  R.  Co.,  277  111. 
115  N.  E.  170. 

Kentucky.     Southern   R. 
Avey,  173  Ky.  598,  191  S.  W.  460. 

Missouri.  American  Silver  Mfg. 
Co.  V.  Wabash  R.  Co.,  174  Mo.  App. 
184.  1.56  S.  W.  830. 

Wisconsin.  Bichlmeir  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  R.  Co., 
159  Wis.  404,  150  N.  W.  508. 

"But  the  Supreme  Court  of  the 
United  States  has  construed  this 
proviso  to  mean  only  such  remedy 
or  right  of  action  as  existed  under 
the  federal  laws,  statutory  or  com- 
mon, at  the  time  of  the  passage  of 


the  measure,  and  not  such  remedy 
or  right  of  action  as  the  shipper 
had  under  the  state  law."  South- 
ern  Ry.   Co.   V.  Avey,  supra. 

"The  federal  statute  touching 
this  matter  and  the  decisions  of 
the  Supreme  Court  of  the  United 
Strtes  construing  them  afford  an 
exclusive  rule  for  the  determina- 
tion of  the  controversies  pertain- 
ing to  the  subject.  This  is  true, 
too,  notwithstanding  the  provisio  is 
of  the  Carmack  Amendment  to  the 
effect  that  the  enactment  shall 
not  deprive  any  holder  of  a  hill  oi 
lading  of  any  remedy  or  right  of 
action  that  he  had  under  the  ex- 
isting law,  for  this  is  construed  to 
refer  alone  to  existing  federal 
law."  Stubblefield  v.  St.  Louis  & 
S  F.  R.  Co.,  194  Mo.  App.  396,  184 
S.  W.  149. 


^  332]     Duties    Under    Cakmack    Amendment.         581 

and  remedies  under  the  common  law  or  other  statutes. 
But  this  court  said  of  that  contention  what  must  be 
said  of  the  proviso  in  section  20,  that  it  was  'evidently 
only  intended  to  continue  in  existence  such  other  rights 
or  remedies  for  the  redress  of  some  specific  wrong  or 
injury,  whether  given  by  the  Interstate  Commerce  Act, 
or  by  state  statute,  or  common  law,  not  inconsistent 
with  the  rules  and  regulations  prescribed  by  the  provi- 
sions of  this  act.'  Again,  it  was  said,  of  the  same  clause, 
in  the  same  case,  that  it  could  'not  in  reason  be  con- 
strued as  continuing  in  a  shipper  a  common  law  right 
the  existence  of  which  would  be  inconsistent  with  the 
provisions  of  the  act.  In  other  words,  the  act  cannot  be 
said  to  destroy  itself.'  To  construe  this  proviso  as 
preserving  to  the  holder  of  any  such  bill  of  lading  any 
right  or  remedy  which  he  may  have  had  under  existing 
Federal  law  at  the  time  of  his  action,  gives  to  it  a  more 
rational  interpretation  than  one  which  would  preserve 
liglits  and  remedies  under  existing  state  laws,  for  the 
latter  view  would  cause  the  proviso  to  destroy  the  act 
itself.-  One  illustration  would  be  a  right  to  a  remedy 
against  a  succeeding  carrier,  in  preference  to  proceeding 
against  the  primary  carrier,  for  a  loss  or  damage  in- 
curred upon  the  line  of  the  former.  The  liability  of 
such  succeeding  carrier  in  the  route  would  be  that  im- 
posed by  this  statute,  and  for  which  the  first  carrier 
might  have  been,  made  liable.  "^^ 

§  332.  Duties  and  Obligations  of  Initial  Carrier 
Commence  With  Delivery  of  Property  for  Transporta- 
tion. The  duties  and  obligations  of  the  initial  carrier 
under  the  federal  statute  as  to  property  transported 
in  interstate  commerce  or  to  adjacent  countries  com- 
mence with  the  delivery  to  and  the  acceptance  by  the 
carrier  of  the  property  for  the  purpose  of  shipment. 
His  liability  therefore  commences  when  the  shipper  sur- 
renders the  entire  custody  of  his  goods  and  the  carrier 
receives  complete  control  of  them  for  the  purpose   of 

15.    Adams  Exp.  Co.  v.   Cronin-       33  Sup.  Ct.  148,  44  L.  R.  A.  (N.  S.) 
ger,  226  U.  S.   491,  57  L.  Ed.  314,       257. 


582  Duties    to    Interstate    Shippers.  [§  332 

transportation;  for  the  duty  and  obligation  respecting 
the  care  and  safety  of  merchandise  rests  wholly  either 
upon  the  owner  or  upon  the  carrier  and  the  law  recog- 
nizes no  division  of  such  duty  or  obligation.  Until  the 
property  has  been  placed  in  the  hands  of  the  carrier  by 
a  delivery  and  is  accepted  by  him,  he  cannot  be  held 
responsible.  After  the  delivery  is  complete,  the  carrier 
alone  is  responsible  and  no  duty  or  obligation  rests  upon 
the  owner.^®  "If  the  goods  are  delivered  to  and  accept- 
ed by  the  carrier  for  immediate  shipment,"  said  Judge 
Trimble,  "the  liability  of  the  latter  attaches  from  the 
moment  of  such  delivery  and  acceptance,  even  though 
the  bill  of  lading  is  not  made  out.  The  liability  of  the 
defendant  in  this  case  became  fixed  therefore  unless,  by 
reason  of  the  shipment  being  interstate  in  its  character, 
a  different  rule  is  applied.  Nothing  is  said  in  the  briefs 
on  either  side  about  this  feature  of  the  case,  however, 
and  we  presume  that  the  fact  of  its  being  an  interstate 
shipment  does  not  change  or  affect  the  situation,  other- 
wise the  question  would  have  been  raised  and  such 
point  made.  The  Carmack  Amendment  of  June  29, 
1906  (34  Stat.  584,  ch.  104)  to  the  Hepburn  Act  of 
February  4,  1887  (34  Stat.  584,  ch.  3591)  provides  that 
the  carrier  'shall  issue  a  receipt  or  bill  of  lading'  for 
property  received  for  transportation  (Adams  Express 
Co.  V.  Croninger,  226  U.  S.  491,  1.  c.  504),  but  it  nowhere 
says  the  liability  of  such  carrier  shall  not  attach  until 
such  bill  of  lading  has  been  issued.  At  least  our  at- 
tention has  not  been  directed  to  any  decision  holding 

16.    United  States.     Southern  R.  Am.  St.  Rep.  408,  6  So.  218. 

Co.  V.  Reid,  222  U.  S.  424,  56  L.  Ed.  Mississippi.     Tate  v.  Yazoo  &  M. 

257,    32    Sup.    Ct.    140;    Covington  V.    R.    Co,    78    Miss.    842,    84   Am. 

Stock-Yards   Co.   v.   Keith,   139   U.  St.  Rep.  649,  29  So.  392. 

S.  128,  35  L.  Ed.  73,  11  Sup.  Ct.  461.  Missouri.    Morrison  Grain  Co.  v. 

Arkansas.    St.  Louis,  A.  &  T.  Ry.  Missouri  Pac.  R.  Co.,  182  Mo.  App. 

Co.  V.  Neel,  56  Ark.  279,  19  S.  W.  339,  170  S.  W.  404;    Milne  v.  Chi- 

963.  cago,  R.   I.   &  P.   R.   Co.,   155   Mo. 

Georgia.       Dixon    v.     Central  of  App.  465,  135  S.  W.  85. 

Georgia  Ry.  Co.,  110  Ga.  173,  35  S.  New  Jersey.     Standard  Combed 

E.  369.  Thread  Co.  v.  Pennsylvania  R.  Co., 

Louisiana.     Meyer  v.  Vlcksburg,  88  N.  J.  L.  257,  L.  R.  A.  1916C  606. 

S.  &  P.  R.  Co.,  41  La.  Ann.  639,  17  95  Atl.  1002. 


§  333]     Duties    Under    Carmack    Amendment.         583 

to  that  effect.  If  the  carrier  chose  to  accept  and  begin 
the  transportation  of  goods  witliout  issuing  a  bill  of 
lading  it  would  be  violating  the  act  referred  to,  but  the 
relation  of  shipper  and  cairier  would  exist  none  the 
less.  The  agent  took  possession  of  the  car,  had  it 
switched  to  where  it  would  have  to  go  when  finally 
started,  being  satisfied  that  the  contract  would  be  signed 
in  the  morning,  and  treated  it  as  a  car  for  immediate 
shipment,  and  defendant  did  not  intend  to  return  it  to 
the  elevator.  The  question  whether  it  was  delivered  and 
accepted  for  shipment  was  a  jury  question  (Milne  v. 
Railroad,  supra;  Reading  v.  Railroad,  165  Mo.  App.  123; 
Gregory  v.  Wabash  Railroad,  46  Mo.  App.  574.)  The 
jury  has  decided  the  question  and  upon  evidence  suf- 
ficient to  justify  the  finding.  Cases  which  show  that 
goods  were  merely  left  at  the  station,  not  to  be  trans- 
ported immediately  in  the  usual  course  of  business,  but  to 
first  have  something  done  to  them  (such  as  cotton  to 
be  compressed)  or  to  await  the  future  convenience  or 
desire  of  the  shipper,  are  not  in  point.  In  the  class  of 
cases  first  mentioned  there  was  no  delivery  to  the  car- 
rier, and  in  the  second  class  the  goods  were  not  to  be 
shipped  but  to  be  held  by  the  carrier  as  a  warehouse- 
man until  the  owner  decided  to  ship.'"^ 

§  333.  Effect  of  Failure  or  Refusal  of  Initial  Car- 
rier to  Issue  Bill  of  Lading.  While  the  Cummins  amend- 
ment requires  the  initial  carrier,  receiving  property  for 
transportation  in  interstate  and  foreign  commerce,  to 
issue  a  bill  of  lading  therefor,  its  liability  under  the 
statute  is  in  no  wise  affected  by  the  fact  that  it  failed 
or  refused  to  issue  a  bill  of  lading.^^  If  a  carrier  re- 
ceives goods  for  shipment  in  interstate  commerce  and 
fails  to  issue  the  bill  of  lading  prescribed  by  the  federal 
law,  it  is  nevertheless  liable  for  the  value  of  the  goods 

17.  Morrison  Grain  Co.  v.  Mis-  App.  458,  177  S.  W.  75G;  luter- 
souri  Pac.  R.  Co.,  182  Mo.  App.  339.  national  Watch  Co.  v.  Delaware,  L,. 
170  S.  W.  404.  &  W.  R.  Co.,  80  N.  J.  L.  553,  78  Atl. 

18.  Bowles  V.  Quincy,  O.  &  K.  C.  49;  Aton  Piano  Co.  v.  Chicago,  M. 

R.  Co.,  Mo.  App.  ,  187  S.  &  St.  P.  R.  Co.,  152  Wis.  15G.  139 

W.  131;  Keithley  v.  Lusk,  190  Mo.  N.  W.  743. 


5S4  Duties    to    Interstate    Shippers.  [§  333 

and  damages  thereto,  to  the  same  extent  as  if  it  had 
issued  the  bill  of  lading."     A  carrier  will  not  be  per- 
mitted to  take  advantage  of  its  own  negligence  in  fail- 
ing to  issne  a  bill  of  lading.  "The  last  insistence  of  de- 
fendant is  that  it  can  be  held  to  the  liability  of  a  through 
carrier  only  by  issuing  a  bill  of  lading  for  a  through 
shipment  and  this  it  did  not  do.     It  is  true  that  the 
Federal  act  requires  initial  carriers  to  issue  a  receipt 
or  bill  of  lading  for  all  property  received  for  transporta- 
tion.   On  account  of  other  provisions  of  the  act  this  re- 
ceipt or  bill  of  lading  should  contain  the  point  of  des- 
tination, the  rate  to  be  charged  and  other  pertinent  pro- 
visions.    But  we  cannot  assent  to  the  proposition  that 
if  a  railroad  company  fails  to  issue   such  receipt   or 
bill  of  lading,  when  it  actually  accepts  and  carries  the 
goods,  that  it  is  thereby  exempt  from  liability  for  its 
negligence  in  transporting  the  same."^'' 

§  334.     Term  ''Lawful  Holder"  of  Bill  of  Lading 
not  Limited  to  Owner  of  Property  Transported.     The 

statute  prescribes  that  the  lawful  holder  of  a  bill  of 
lading,  issued  by  the  initial  carrier  pursuant  to  the  re- 
quirements of  the  Act,  may  maintain  an  action  for  any 
loss,  damage  or  injury  to  the  property  transported 
caused  either  by  the  initial  carrier  or  any  connecting 
carrier  to  whom  the  goods  are  delivered.  The  words 
"lawful  holder"  do  not  limit  the  remedy  given  by  the 
Act  to  the  owner  of  the  property  or  some  one  shown  to 
be  duly  authorized  to  act  for  him.^'    It  is  not  therefore 

19.  Bryan  v.  Louisville  &  N.  R.  Carmack  Amendment.  It  pro- 
Co.,  N.  C.  ,93  S.  E.  750;  vides:    'That  any  common  carrier 

Davis  V.  Norfolk  Southern  R.  Co.,  .        .      .      receiving    property    for 

172  N.  C.  209,  90  S.  E.  123.  transportation  from  a  point  in  one 

20.  Keithley  v.  Lusk,  190  Mo.  state  to  a  point  in  another  state 
App.  458,  177  S.  W.  75G.  shall    issue    a    receipt    or    bill    of 

21.  Pennsylvania  R.  Co.  v.  Olivit  lading  therefor  and  shall  be  liable 
Bros.,  243  U.  S.  574,  61  L.  Ed.  908,  to  the  lawful  holder  (italics  ours) 
37  Sup.  Ct.  468,  in  which  the  court  thereof  for  any  loss,  damage,  or 
said:  "Coming  to  the  merits  of  injury  to  such  property  caused  by 
the  question,  however,  we  concur  it.  .  .  .'  (34  Stat,  at  L.  595, 
with  the  court  of  errors  and  ap-  chap.  3951,  Comp.  Stat.  1913,  sec. 
peals    in    its    construction    of   the  8592.)     The  crucial  words  are  'law- 


§  335]     Duties    Under    Carmack    Amendment. 


585 


essential  for  the  plaintiff  to  prove  ownership  in  tlie 
property  transported  either  at  the  time  of  shipment,  at 
the  time  of  delivery  or  prior  to  the  commencement  of  the 
suit,  if  he  is  in  fact  the  lawful   holder  of  the  bill   of 


lading." 


§  335.  Bill  of  Lading  Issued  by  Initial  Carrier 
Governs  Entire  Transportation— Second  Bill  Void.  Un- 
der the  direction  of  the  Carmack  amendment  na  amend- 
ed, the  connecting  carriers  become  the  agents  of  the  ini- 
tial carrier  for  the  purpose  of  completing  the  transpor- 
tation and  delivering  the  property.-'  The  bill  of  lading 
therefore  required  to  be  issued  by  the  initial  carrier  upon 


ful  holder.'  Defendant  contends 
that  they  mean  'the  owner  or  some- 
one shown  to  be  duly  authorized  to 
act  for  him  in  a  w'ay  that  would 
render  any  judgment  recovered 
in  such  an  action  against  the  car- 
rier res  acljudicata  in  any  other 
action.'  And  sec.  8  of  the  Inter- 
state Commerce  Act  is  referred  to 
as  fortifying  such  view.  It  pro 
vides  that  'such  common  carrier 
shall  be  liable  to  the  person  or 
persons  injured'  in  consequence  of 
any  violations  of  the  act.  To  ac- 
cept this  view  would  make  sec. 
8  contradict  the  Carmack  Amend- 
ment (sec.  20),  it  having  only  a 
general  purpose,  whereas  the  pur- 
pose of  the  amendment  is  special 
and  definitely  e.xpresses  the  law- 
ful holder  of  the  bill  of  lading  to  be 
the  person  to  whom  the  carrier 
shall  be  liable  'for  any  loss,  dam- 
age, or  injury'  to  property  caused 
by  it.  Adams  Exp.  Co.  v.  Croning- 
er   suirra." 

22.  Carr  v.  Pennsylvania  R.  Co.. 
88  N.  J.  L.  235,  96  Atl.  588. 

23.  Northern  Pac.  R.  Co.  v. 
Wall,  241  U.  S.  87,  60  L.  Ed.  905. 
3ti  Sup.  Ct.  493;  Galveston.  H.  & 
S.  A.  R.  Co.  v.  Wallace,  223  U.  S. 


481,  56  L.  Ed.  516,  32  Sup.  Ct.  205; 
Atlantic  Coast  Line  R.  Co.  v.  River- 
side Mills,  219  U.  S.  186,  55  L.  Ed. 
107,  31  Sup.  Ct.  164,  31  L.  R.  A 
(N.   S.)    7. 

"The  Carmack  Amendment  to 
the  Interstate  Commerce  Act  (Sec. 
7,  c.  3591,  34  Stat.  584,  593),  which 
was  in  force  when  this  bill  of 
lading  was  issued,  directs  a  car- 
rier receiving  property  for  inter- 
state transportation  to  issue  a 
through  bill  of  lading  therefor,  al- 
though the  place  of  destination  is 
on  the  line  of  another  carrier: 
subjects  the  receiving  carrier  to 
liability  for  any  injury  to  the  prop- 
erty caused  by  it  or  any  other  car- 
rier in  the  course  of  the  trans- 
portation, and  requires  a  connect- 
ing carrier  on  whose  line  the  prop- 
erty is  injured  to  reimburse  the 
receiving  carrier  where  the  latt-^r 
is  made  to  pay  for  such  injury. 
Thus,  under  the  operation  of  the 
amendment,  the  connecting  car- 
rier becomes  the  agent  of  the  re- 
ceiving carrier  for  the  purpose  of 
completing  the  transportation  and 
delivering  the  property."  North- 
ern Pac.  R.  Co.  v.  Wall,  supra. 


b86  Duties    to    Interstate    Shippers.  [§  335 

an  interstate  shipment  governs  the  entire  transporta- 
tion and  determines  the  dnties,  obligations  and  liabili- 
ties of  all  the  participating  carriers  to  the  extent  that 
the  terms  of  the  bill  of  lading  are  applicable  and 
valid.-'  The  liability  of  any  carrier  over  the  ronte  over 
which  the  articles  are  routed,  for  loss  or  damage,  is  that 
imposed  by  the  act  as  measured  by  the  original  con- 
tract of  shipment  so  far  as  it  is  valid  under  this  stat- 
ute.=^^ 

As  the  bill  of  lading  required  to  be  issued  by  the 
initial  carrier  upon  an  interstate  shipment  governs  the 
entire  transportation,  the  carrier  is  bound  to  transport 
the  property  upon  the  terms  named  in  the  original  bill 
of  lading  and  the  acceptance  by  the  shipper  of  a  second 
bill  of  lading  by  the  connecting  carrier  is  without  con- 
sideration and  void.^*'  "The  purpose  of  the  Carmack 
Amendment,"  said  Mr.  Justice  Brandeis  in  the  Ward 
case,  cited,  "has  been  frequently  considered  by  this 
court.  It  was  to  create  in  the  initial  carrier  unity  of 
responsibility  for  the  transportation  to  destination. 
Atlantic  Coast  Line  E.  Co.  v.  Riverside  Mills,  219  U. 
S.  186,  55  L.  Ed.  167,  31  L.  R.  A.  (N.  S.)  7,  31  Sup.  Ct. 
Rep.  164;  Northern  P.  R.  Co.  v.  Wall,  241  U.  S.  87,  92, 
60  L.  ed.  905,  907,  36  Sup.  Ct.  Rep.  493.  And  provisions 
in  the  bill  of  lading  inconsistent  with  that  liability  are 
void.  Norfolk  &  W.  R.  Co.  v.  Dixie  Tobacco  Co.,  228 
U.  S.  593,  57  L.  ed.  980,  33  Sup.  Ct.  Rep.  609.  While  the 
receiving  carrier  is  thus  responsible  for  the  whole  car- 
riage, such  connecting  road  may  still  be  sued  for  dam- 

24.  Georgia,  F.  &  A.  R.  Co.  v.  shipment  governs  the  entire  trans- 
Blish  Milling  Co.,  241  U.  S.  190,  portation  and  thus  fixes  the  ob- 
fiO  L.  Ed.  948,  36  Sup.  Ct.  541;  ligations  of  all  participating  car- 
Southern  R.  Co.  V.  Prescott,  240  U.  rie  s  to  the  extent  that  the  terms 
S.  632,  60  L.  Ed.  836,  36  Sup.  Ct.  of  the  bill  of  lading  are  applicable 
469;  Cleveland,  C,  C.  &  St.  L.  R.  and  valid."  Georgia,  P.  &  A.  R.  Co. 
Co.  v.  Dettlebach,  239  U.  S.  588,  60  v.  Blish  Milling  Co.,  supra. 
L.  Ed.  453,  36  Sup.  Ct.  177.  25.    Kansas  City  Southern  R.  Co. 

"The   connecting  carrier  is  not  v.  Carl,  227  U.  S.  639,  57  L.  Ed.  683, 

relieved  from  liability  by  the  Car-  33  Sup.  Ct.  391. 
mack  Amendment,  but  the  bill  of  26.    Missouri.  K.  &  T.  R.  Co.  of 

lading  required  to  be  issued  by  the  Texas  v.  Ward,  244   U.  S.  383,  61 

initial  carrier  upon  an  interstate  L.  Ed.  1213,  37  Sup.  Ct.  617. 


§  336]     Duties    Undek    (-ahmack     Amendment.         587 

ages  occiiiTing  on  its  line;  and  tlie  liability  of  such 
participating  carrier  is  fixed  l)y  the  applicable  valid 
terms  of  the  original  bill  of  lading.  The  bill  of  lading 
re(|iiired  to  be  issued  by  the  initial  carrier  upon  an  inter- 
state shipment  governs  the  entire  transportation.  The 
terms  of  the  original  bill  of  lading  were  not  altered 
by  the  second,  issued  l)y  the  connecting  carrier.  As 
appellants  were  already  bound  to  transport  the  cattle 
at  the  rate  and  upon  the  terms  named  in  the  original 
bill  of  lading,  the  acceptance  by  the  shii)per  of  tlic 
second  bill  was  without  consideration  and  was  void. 
The  railway  companies  contend  that  while  the  Car- 
mack  Amendment  makes  the  receiving  carriers  pay  for 
all  liability  incurred  by  the  connecting  lines,  the  ques- 
tion of  whether  there  is  any  such  liability  or  not  must  be 
determined  by  reference  to  the  separate  contracts  of  each 
])articipating  carrier,  and  not  to  the  contract  of  the  ini- 
tial carrier  alone.  If,  as  contended,  a  shipper  must, 
in  order  to  recover,  first  file  his  'verified  claim'  with 
the  connecting  carrier  who  caused  the  injury,  as  pro- 
vided in  a  separate  bill  of  lading  issued  by  such  car- 
rier, the  shipper  would  still  rest  under  the  burden  of 
determining  which  of  the  several  successive  carriers  was 
at  fault.  Such  a  construction  of  the  Carmack  Amend- 
ment would  defeat  its  purpose,  which  was  to  relieve 
shippers  of  the  difficult,  and  often  impossible,  task  of 
determining  on  which  of  the  several  connecting  lines 
the  damage  occurred.  For  the  purpose  of  fixing  the 
liability,  the  several  carriers  must  be  treated,  not  as 
indei)endent  contracting  parties,  but  as  one  system; 
and  the  connecting  lines  become  in  effect  mere  agents, 
whose  duty  it  is  to  forward  the  goods  under  the  terms 
of  the  contract  made  by  their  principal,  the  initial  car- 
rier. ' ' 

§  336.    Statute  Embraces  Damages  due  to  Delay  as 
well  as  for  Loss  or  Injury  in  Course  of  Transportation. 

The  act  prescribes  that  the  initial  carrier  shall  be  liable 
for  any  ''loss,  damage  or  injury"  to  the  property  trans- 
ported. These  words  in  the  statute  are  comprehensive 
enough  to  embrace  responsibilitv  for  all  loss  resultiuo- 


588 


Duties    to    Inteestate    Shippers. 


[§  336 


from  auy  failure  to  discbarge  a  carrier's  duty  as  to 
any  part  of  the  agreed  transportation."  An  initial 
carrier  is  therefore  liable  for  delay  occurring  on  tlie 
line  of  a  connecting  carrier  although  there  may  be  no 
physical  damage  to  the  property.^* 

In  a  leading  decision  the  federal  Supreme  Court 
held  that  the  statute  included  liability  for  loss  of  market 
due  to  a  negligent  delay  on  the  line  of  a  connecting  car- 
rier.''' The  court  said:  "The  amendment  of  sec.  20  of 
the  Interstate  Commerce  Act,  known  as  the  Carmack 
Amendment  (Act  of  June  29,  1906,  c.  3591,  sec.  7,  34 
Stat.  584,  595),  provides  'that  any  common  carrier 
.  receiving  property  for  transportation  from  a 
point  in  one  State  to   a  point  in  another   State   shall 


27.  Georgia,  F.  &  A.  R.  Co.  v. 
Blish  Milling  Co.,  241  U.  S.  190,  60 
L.  Ed.  948,  36  Sup.  Ct.  541,  in 
which  the  court  said:  "It  is  not 
to  be  doubted  that  if,  in  the  case 
of  an  interstate  shipment  under 
a  through  bill  of  lading,  the  ter- 
minal carrier  makes  a  misdelivery, 
the  initial  carrier  is  liable;  and 
when  it  inserts  in  its  bill  of  lad- 
ing a  provision  requiring  reason- 
able notice  of  claims  'in  case  of 
failure  to  make  delivery'  the  fair 
meaning  of  the  stipulation  is  that 
it  includes  all  cases  of  such  failure, 
as  well  those  due  to  misdelivery 
as  those  due  to  the  loss  of  the 
goods.  But  the  provision  in  ques- 
tion is  not  to  be  construed  in  one 
way  with  respect  to  the  initial 
carrier  and  in  another  with  re- 
spect to  the  connecting  or  terminal 
carrier.  As  we  have  said,  the  lat- 
ter taxes  the  goods  under  the  bill 
of  lading  issued  by  the  initial  car- 
rier, and  its  obligations  are  meas- 
ured by  its  terms  (Kansas  South- 
ern Ry.  V.  Carl,  stipra;  Southern 
Railroad  v.  Prescott,  supra);  and 
if  the  clause  must  be  deemed  to 
cover  a  case  of  misdelivery  when 


the  action  is  brought  against  the 
initial  carrier,  it  must  equally 
have  that  effect  in  the  case  of  the 
terminal  carrier  which  in  the  con- 
templation of  the  parties  was  to 
make  the  delivery.  The  clause 
gave  abundant  opportunity  for 
presenting  claims  and  we  regard 
it  as  both  applicable  and  valid." 

28.  Mississippi,  Southern  Pac. 
R.  Co.  V.  A.  J.  Lyon  &  Co.,  107  Miss. 
777,  Ann.  Cas.  1917D  171,  66  So. 
20f.' 

Oklahoma.  Ft.  Smith  &  W.  R. 
Co.  V.  Awbrey  &  Semple,  39  Okla. 
270,  134  Pac.  1117. 

Texas.    Pecos  &  N.  T.  Ry.  Co.  v. 

Cox,  Tex.  Civ.  App.  ,  150 

S    W.  265. 

Virginia.  Norfolk  Truckers'  Ex- 
change V.  Norfolk  Southern  R.  Co., 
116  Va.  466,  82  S.  E.  92. 

West  Virginia.  Karr  v.  Balti- 
more &  O.  R.  Co.,  76  W.  Va.  526, 
86  S.  E.  43. 

29.  New  York,  P.  &  N.  R.  Co. 
V.  Peninsula  Produce  Exch.  of 
Maryland,  240  U.  S.  34,  60  L.  Ed. 
511,  36  Sup.  Ct.  230,  L.  R.  A.  1917A 
193. 


§  336]     Duties    Under    Carmack    Amendment,         589 

issue  a  roeoi])t  or  ])ill  of  ladinji:  therefor  and  shall  he 
liable  to  the  lawful  holder  thereof  for  any  loss,  damage, 
or  injury  to  siu'h  ])roperty  caused  by  it  or  by  any  com- 
mon carrier  ...  to  which  such  property  may  be 
delivered  or  over  whose  line  or  lines  such  property 
may  pass,  and  no  contract,  receipt,  rule,  or  regulation 
shall  exempt  such  common  carrier  .  .  .  from  the 
liability  herebj^  imposed.'  We  need  not  review  at 
length  the  considerations  which  led  to  the  adoption  of 
this  amendment.  These  were  stated  in  Atlantic  Coast 
Line  v.  Riverside  Mills,  219  IT.  S.  186,  199-203.  It  was 
there  jiointed  out  that  along  with  singleness  of  rate  and 
continuity  of  carriage  in  through  shipments  there  had 
grown  up  the  practice  of  requiring  specific  stipulations 
limiting  the  liability  of  each  separate  company  to  its 
own  part  of  the  through  route,  and,  as  a  result,  the 
shipper  could  look  to  the  initial  carrier  for  recompense 
only  'for  loss,  damage  or  delay'  occurring  on  its  own 
line.  This  'burdensome  situation'  was  'the  matter  which 
Congress  undertook  to  regulate.'  And  it  was  concluded 
that  the  requirement  that  interstate  carriers  holding 
themselves  out  as  receiving  packages  for  destinations 
beyond  their  own  terminal  should  be  compelled  'as  a 
condition  of  continuing  in  that  traffic  to  obligate  them- 
selves to  carry  to  the  point  of  destination,  using  the 
lines  of  connecting  carriers  as  their  own  agencies,'  was 
within  the  power  of  Congress.  The  rule,  said  the  court 
in  defining  the  purpose  of  the  Carmack  iVmendmeut, 
'is  adapted  to  secure  the  rights  of  the  shipper  by  secur- 
ing unity  of  transportation  with  unity  of  responsibility.' 
And,  again,  we  said  in  Adams  Express  Company  v. 
Croninger,  226  U.  S.  491,  that  this  legislation  embraces 
'the  subject  of  the  liability  of  the  carrier  under  a  bill 
of  lading  which  he  must  issue.'  'The  duty  to  issue  a 
bill  of  lading  and  the  liability  thereby  assumed  are 
covered  in  full,  and  though  tiiere  is  no  reference  to  the 
effect  upon  state  regulation,  it  is  evident  that  Congress 
intended  to  adopt  a  uniform  rule  and  relieve  such  con- 
tracts from  the  diverse  regulation  to  which  they  had 
been  theretofore  subject.'  Id.,  p.  506.  It  is  now  in- 
sisted  that   Congress   failed   to    accomplish   this   para- 


990  Duties    to    Interstate    Shippers.  [§  336 

mount  object;  that  wliile  unity  of  responsibility  was 
secured  if  the  goods  were  injured  in  the  course  of  trans- 
portation or  were  not  delivered,  the  statute  did  not 
reach  the  case  of  a  failure  to  transport  with  reasonable 
despatch.  In  such  case  it  is  said  that,  although  tliere 
is  a  through  shipment,  the  shipper  must  still  look  to 
the  particular  carrier  whose  neglect  caused  the  delay. 
We  do  not  think  that  the  language  of  the  amendment 
has  the  inadequacy  attributed  to  it.  The  words  ^anj 
loss,  damage,  or  injury  to  such  property'  caused  by  the 
initial  earner  or  by  any  connecting  carrier  are  compre- 
hensive enough  to  embrace  all  damages  resulting  from 
any  failure  to  discharge  a  carrier's  duty  with  respect 
to  any  part  of  the  transportation  to  the  agreed  destina- 
tion. It  is  not  necessary,  nor  is  it  natural  in  view  of 
the  general  purpose  of  the  statute,  to  take  the  words 
'to  the  property'  as  limiting  the  word  'damage'  as  well 
as  the  word  'injury'  and  thus  as  rendering  the  former 
wholly  superfluous.  It  is  said  that  there  is  a  different 
responsibility  on  the  part  of  the  carrier  with  respect  to 
delay  from  that  which  exists  where  there  is  a  failure  to 
carry  safely.  But  the  difference  is  with  respect  to  the 
measure  of  the  carrier's  obligation;  the  duty  to  trans- 
port with  reasonable  despatch  is  none  the  less  an  integral 
part  of  the  normal  undertaking  of  the  carrier.  And  we 
can  gather  no  intent  to  unify  only  a  portion  of  the 
carrier's  responsibility.  Further,  it  is  urged,  that  the 
amendment  provides  that  the  initial  carrier  may  re- 
cover from  the  connecting  carrier  'on  whose  line  the 
loss,  damage,  or  injury  shall  have  been  sustained  the 
amount  of  such  loss,  damage,  or  injury  as  it  may  be 
required  to  pay  to  the  owners  of  such  property,'  and 
this,  it  is  said,  shows  that  the  'loss,  damage,  or  injury' 
described  is  that  which  may  be  localized  as  having 
occurred  on  the  line  of  one  of  the  carriers  and  there- 
fore should  be  limited  to  physical  loss  or  injury.  But 
we  find  no  difficulty  in  this,  as  the  damages  required  to 
be  paid  by  the  initial  carrier  are  manifestly  regarded 
as  resulting  from  some  breach  of  duty,  and  the  purpose 
is  simply  to  provide  for  a  recovery  against  the  connect- 
ing carrier  if  the  latter,  as  to  its  part  of  the  transpor- 


§  337 1     HrTFRs    Undpjr    Carmack    Amendment. 


51)1 


I 


tatioii,  is  bound  to  he  guilty  of  that  breach.  The  view 
we  liave  expressed  finds  support  in  the  explicit  terms 
of  the  act  of  January  20,  1914,  c.  11,  39  Stat.  278,  which 
provides  'tliat  no  suit  brouglit  in  any  state  court  of 
competent  jurisdiction  against  a  railroad  company 
.  .  .  to  recover  damages  for  delay,  loss  of,  or  injury 
to  property  received  for  transportation  by  such  com- 
mon carrier  under  section  twenty  of  the  Act  to  regulate 
commerce  .  .  .  shall  be  removed  to  any  court  of 
the  United  States  where  the  matter  in  controversy  does 
not  exceed,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  $3,000.'  If  the  language  of  sec,  20  can  be 
regarded  as  ambiguous,  this  legislative  interpretation 
of  it  as  conferring  a  right  of  action  for  delay,  as  well 
as  for  loss  or  injury  to  the  property  in  the  course  of 
transportation  is  entitled  to  great  weight." 


§  337.  Wrongful  Delivery  by  a  Terminal  Carrier 
a  "Loss"  Within  Meaning  of  Statute.  The  initial  car- 
rier is  liable  under  the  statute  for  a  wrongful  delivery 
of  the  property  by  the  succeeding  carrier,  since  the 
act  covers  not  only  loss  or  damage  in  transit  but  a 
misdelivery  as  well.^°  "The  duty  of  an  initial  carrier 
with  reference  to  goods  transported  does  not  end  by 
merely  carrying  the  goods  to  their  destination  safely. 
Delivery  to  the  person  entitled  to  receive  the  same,  or, 
if  delivery  cannot  be  made,  then  safe  storage  subject  to 
the  orders  of  the  consignors,  is  a  part  of  the  contract 
of  carriage.  The  appellant  performed  neither  of  these 
obligations.  It  neither  delivered  the  goods  to  the  per- 
son entitled  to  receive  them,  nor  did  it  store  them  sub- 


30.  Georgia,  F.  &  A.  R.  Co.  v. 
Blish  Mining  Co.,  241  U.  S.  190, 
60  L.  Ed.  948,  36  Sup.  Ct.  541; 
Thomas  v.  Blair,  185  Micli.  422, 
151  N.  W.  1041;  Sturges  v.  De- 
troit, G.  H.  &  M.  R.  Co.,  166  Mich. 
231,  131  N.  W.  706;  Peycke  Bros. 
Commission  Co.  v.  Sandstone  Co- 
Op.  Co.,  195  Mo.  App.  417.  191  S. 
W.  1088;   Koniper  Mill  Co.  v.  Mis- 


souri Pac.  R.  Co.,  193  Mo.  App.  466, 
186  S.  W.  8. 

"The  delivery  of  the  car  by  the 
terminal  carrier,  the  Burlington, 
was  unauthorized,  and  this,  under 
the  Interstate  Commerce  Act,  ren- 
dered the  initial  carrier,  the  Great 
Northern,  liable."  Peycke  Bros. 
Commission  Co.  v.  Sandstone  Co- 
Op.  Co.,  supra. 


5-92  Duties    to    Interstate    Shippers.  [§  337 

ject  to  the  order  of  the  consignor.  It  is  therefore  liable 
for  the  loss,  as  the  initial  carrier,  under  the  federal 
statute.'"' 

§  338.  Initial  Carriers  Liable  for  Property  Held  by 
Terminal  Carrier  as  Warehouseman— Conflicting  Deci- 
sions. IMany  slate  courts  in  construing  the  Carmack 
amendment  have  held  that  the  initial  carrier  is  only 
liable  for  loss,  damage  or  injury  to  property  trans- 
ported in  interstate  commerce  while  it  is  in  the  posses- 
sion of  the  terminal  carrier  as  such,  and  that  when  the 
terminal  carrier  holds  the  property  as  a  warehouseman 
and  damage  then  results,  the  initial  carrier  is  not  liable 
under  the  federal  statute.^^  But  these  cases  seem  to  be 
in  conflict  with  the  controlling  decisions  of  the  federal 
Supreme  Court. ^^ 

Under  the  Act  to  Eegulate  Commerce,  the  term 
"transportation"  includes  all  services  in  connection  with 
the  receipt,  delivery,  elevation  and  transfer  in  transit, 
ventilation,  refrigeration  or  icing,  storage  and  handling 
of  property  transported.  From  this  and  other  pro- 
visions of  the  Hepburn  Act  Congress  recognized  that 
the  duties  of  carriers  to  the  public  included  the  per- 
formance of  a  variety  of  services  that,  according  to  the 
common  law,  were  separable  from  the  carrier's  services 
as  carrier,  and  in  order  to  prevent  overcharges  and 
discriminations  from  being  made  imder  the  pretext  of 

31.    Coovert  v.  Spokane,  P.  &  S.  32.    Adams  Seed  Co.  v.  Chicago 

R.  Co.,  80  Wash.  87,  141  Pac.  324,       Great  Western  R.  Co.,  Iowa 

citing  the  following  cases:   Atlan-      ,  165  N.  W.  3G7;  Hogan  Milling 

tic  Coast  Line  R.  Co.  v.  Riverside  Co.  v.  Union  Pac.  R.  Co.,  91  Kan. 

Mills,  219  U.  S.  186,  55  L.  Ed.  167,  783,  139  Pac.  397;   Model  MiH  Co. 

31  Sup.  Ct.  164,  31  L.  R.  A.  (N.  S.)  y    Carolina,    C.    &   0.   R.   Co.,    136 

7;  Galveston,  H.  &  S.  A.  R.  Co.  v.  rj,^^^    gil,  188  S.  W.  936;   Norfolk 

Wallace,  223  U.  S.  481,  56  L.  Ed.  ^  ^^  ^_  ^^_  ^_  g^^^^^,^  ^^^^^  ^.^^_ 


ing  Co.,  109  Va.  184,  63  S.  E.  415. 
33.     Southern  R.  Co.  v.  Prescott, 


516,  32  Sup.  Ct.  205;  Chicago  & 
A.  R.  Co.  V.  Kirby,  225  U.  S.  155, 
56  L.  Ed.  1033,  32  Sup.  Ct.  648, 
Ann.  Cas.  1914A  501;  Nashville,  C.  ^40  U.  S.  G32,  60  L.  Ed.  836,  36 
&  St.  L.  R.  Co.  v.  Dreyfuss-Weil  Sup.  Ct.  469;  Cleveland,  C,  C.  & 
Co.,  150  Ky.  333,  150  S.  W.  321,  St.  L.  R.  Co.  v.  Dettlebach,  239  U. 
and  Central  of  Georgia  R.  Co.  v.  S  588,  60  L.  Ed  453,  36  Sup.  Ct. 
Sims.  169  Ala.  295,  53  So.  826.  177. 


§  339]     Duties    Under    Carmack    Amendment.         593 

performing  such  additional  services,  it  enacted  that,  so 
far  as  interstate  carriers  by  rail  were  concerned,  the 
entire  body  of  such  services  should  be  included  together 
under  the  single  term  ''transportation"  and  subjected 
to  the  provisions  of  the  Act. 

In  the  Dettlebach  cane,  cited,  the  federal  Supreme 
Court  held  that  the  valuation  clause  in  the  bill  of  lad- 
ing applied  to  the  terminal  carrier's  responsibility  as 
warehouseman.  In  the  Prescott  case  it  was  held  that 
the  liability  of  the  connecting  carrier  as  a  warehouse- 
man was  governed  by  the  bills  of  lading  issued  by  the 
initial  carrier.  In  neither  the  Dettlebach  or  Prescott 
cases,  however,  was  there  an  attempt  to  hold  the  initial 
carrier  liable  for  the  act  of  the  connecting  carrier  as 
warehouseman. 

§  339.  Nature  of  Carrier's  Liability  as  Warehouse- 
man. When  a  carrier  holds  an  interstate  shipment  as  a 
warehouseman,  it  is  liable  for  loss  or  damage  thereto 
only  in  case  of  negligence.  The  burden  of  proving  that 
the  loss  or  damage  was  due  to  negligence  is  upon  the 
plaintiff  and  the  burden  does  not  shift.  Since  it  is  the 
duty  of  the  warehouseman  to  deliver  upon  proper 
demand,  his  failure  to  do  so,  however,  without  excuse, 
is  regarded  as  prima  facie  evidence  of  negligence;  but 
if  it  appears  that  the  loss  is  due  to  fire,  that  fact  in  it- 
self, in  the  absence  of  circumstances  permitting  the 
inference  of  lack  of  reasonable  care,  is  not  sufficient  to 
show  negligence  and  the  burden  remains  upon  the  plain- 
tiff to  prove  that  the  carrier  was  guilty  of  negligence.^* 
The  rule  adopted  by  many  state  courts  that  when  prop 
erty  is  destroyed  by  fire  when  held  by  the  carrier  as  a 
warehouseman,  the  burden  of  showing  that  there  was  no 
negligence,  is  upon  the  defendant,''  is  not  applicable  to 

34.    Southern  R.  Co.  v.  Prescott,  35.   Almand  v.  Georgia  Railroad 

240  U.  S.  632,  60  L.  Ed.  836,  36  Sup.  &  Banking  Co.,  95  Ga.  775,  22  S.  E. 

Ct.  469;  Cau  v.  Texas  &  P.  R.  Co.,  (574;  Stanclird  Milling  Co.  v.  Whit'i 

194  U.  S.  427,  48  L.  Ed.  1053,  24  Line    Cent.    Transit    Co.,    122    Mo. 

Sup.  Ct.  663;  Western  Transp.  Co.  258,  2C  S.  W.  704;  Brunson  &  Boat- 

V.  Downer,  11  Wall.    (U.  S.)    129,  wright  v.  Atlantic  Coast  Line  R. 

20  L.  Ed.  160.  Co.,  76  S.  C.  9,  9  L.  R.  A.   (N.  S.) 

1    Control    Carriers    38 


594  Duties    to    Interstate    Shippers.  [§  339 

interstate  shipments;  for  the  obligation  of  the  carrier 
with  respect  to  the  service  within  the  purview  of  the 
Carmack  amendment  is  governed  by  a  uniform  rule  de- 
cided in  the  federal  courts  in  the  place  of  diverse 
requirements  of  state  legislation  and  decisions.^^ 

§  340.  Quantum  of  Proof  Necessary  to  Establish 
Liability  under  Federal  Statute.  As  the  connecting  car- 
riers under  tlie  Carmack  amendment  are  conclusively 
deemed  to  be  the  agents  of  the  initial  carrier  for  all 
purposes  of  transportation  and  delivery,  the  point  of 
destination  is  thereby  to  be  considered  as  though  it  were 
on  the  initial  carrier's  own  line.  A  shipment,  there- 
fore, in  interstate  commerce  from  a  point  on  one  railroad 
line  to  a  point  on  another,  is  governed  by  the  same  rules 
of  pleading,  practice  and  presumption  as  would  have 
applied  if  the  shipment  had  been  between  stations  on 
the  initial  carrier's  own  railroad."  When  the  plain- 
tiff, in  an  action  under  the  Carmack  amendment,  shows 
a  delivery  to  the  initial  carrier  of  the  merchandise  in 
good  condition,  and  a  bad  or  damaged  condition  when 
received  by  the  consignee  at  the  destination  point  from 
the  terminal  carrier,  he  has  made  a  prima  facie  case 
under  the   statute   against  the  initial   carrier.^**     And, 

577,    56    S.    E.    538;     Fleischman,  38.    United  States.  Galveston,  H. 

Mcrris  &  Co.  v.  Southern  Ry.,  76  &  S.  A.  R.  Co.  v.  Wallace,  223  U.  S. 

S.  C.  237,  9  L.  R.  A.    (N.  S.)    519  481,  56  L.  Ed.  516,  32  Sup.  Ct.  205. 

56  S.  E.  974.  Arkansas.     St.  Louis,  I.  M.  &  S. 

36.  Charleston  &  W.  C.  R.  Co.  R.  Co.  v.  Home  Oil  &  Manufactur- 
V  Varnville  Furniture  Co.,  237  U.  jng  Co.,  122  Ark.  200,  S.  W.  176; 
S  597,  59  L.  Ed.  1137,  35  Sup.  Ct.  Kansas  City  Southern  R.  Co.  v. 
715,  Ann.  Cas.  1916D  333;  Mis-  Mixon-McClintock  Co.,  107  Ark.  48, 
souri,  K.  &  T.  R.  Co.  v.  Harriman,  j^^^  ^^^  ^^^^^  ^247,  154  N.  W. 
227  U.  S.  657,  57  L.  Ed.  690,  33  Sup.  205 

Ct.  397;  Adams  Exp.  Co  v.  Cronin- 

ger,  226  U.  S.  491,  57  L.  Ed.  314,  ^^^^S^^'     Nashville,  C.  &  St.  L. 

33  Sup.  Ct.  148.  44  L.  R.  A.  (U.  S.)  ^^^  ^0-  v.  C.  V.  Truitt  Co.,  17  Ga. 

257.  App.  236,  86  S.  E.  421. 

37.  Galveston,  H.  &  S.  A.  R.  Co.  Indiana.  Chicago,  I.  &  L.  R.  Co. 
V.  Wallace,  223  U.  S.  481,  56  L.  Ed.  v.  Woodward,  164  Ind.  360,  72  N. 
516,  32  Sup.  Ct.  205.  E.  558,  73  N.  E.  810. 


§  341]     Duties    Under    Cakmack    Amendment. 


595 


similarly,  when  the  plaintiff  shows  that  his  goods  have 
been  delivered  to  the  initial  carrier  for  transportation 
and  that  the  terminal  carrier  has  failed  to  deliver  them, 
there  is  a  presumption  of  negligent  default  under  the  law 
against  the  initial  carrier.-'"  If  the  failure  to  deliver 
is  due  to  the  act  of  God,  a  public  enemy,  or  some  cause 
against  which  the  initial  carrier  might  lawfully  con- 
tract, the  burden  is  upon  it  to  bring  itself  within  the 
exception." 

§  341.  Federal  Rule  as  to  Negligent  Delay  Co-op- 
erating with  Act  of  God  in  Destruction  of  Property. 
Many  state  courts  in  determining  the  liability  of  car- 
riers for  loss  or  damage  to  goods  prior  to  the  enact- 
ment of  the  Carmack  amendment  adopted  the  principle 
that  while  a  carrier  was  not  liable  for  loss  or  damage 
due  to  the  act  of  God,  yet  if  the  property  destroyed  by 
an  extraordinary   flood,   for  example,   would   not   have 


Iowa.     Erismau   v.   Chicago,   B. 

&  Q.  R.  Co., Iowa ,  163  N. 

W.  627. 

Kentucky.  Stiles,  Gaddie  &  Stiles 
V.  Louisville  &  N.  R.  Co.,  129  Ky. 
175,  18  L.  R.  A.  (N.  S.)  86,  l?a 
Am.  St.  Rep.  429,  110  S.  W.  320. 

Maine.  Dow  v.  Portland  Steam 
Packet  Co.,  84  Me.  490,  24  Atl.  945. 

Minnesota.  Lindsley  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  36  Minn.  539, 
1  Am.  St.  Rep.  692,  33  N.  W.  7. 

Missouri.  Cudahy  Packing  Co. 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  193 
Mo.  App.  572,  187  S.  W.  149;  Col- 
lins V.  Denver  &  R.  G.  R.  Co..  181 
Mo.  App.   213,   167   S.  W.   1178. 

Tennessee.  Louisville  &  N.  Ry. 
Co.  V.  Wynn,  88  Tenn.  320,  14  S.  W. 
311. 

39.  Nashville,  C.  &  St.  L.  Ry. 
Co.  v.'V.  C.  Truitt  Co.,  17  Ga.  App. 
236.  86  S.  E.  421;  Brinson  & 
Kramer  v.  Norfolk  Southern  R. 
Co.,  169  N.  C.  425,  86  S.  E.  371. 

40.  United  States.  Galveston. 
H.  &  S.  A.  R.  Co.  V.  Wallace,  supra; 


Storm  Lake  Tub  &  Tank  Factory 
V.  Minneapolis  &  St.  L.  R.  Co.,  209 
Fed.  895. 

Arkansas.  St.  Louis,  L  M.  &  S. 
R.  Co.  V.  Cunningham  Commis- 
sion Co.,  125  Ark.  577,  188  S.  W. 
1177. 

Illinois.  Peoria  &  P.  Union  R. 
Co.  V.  United  States  Rolling-Stock 
Co.,  136  111.  643,  29  Am.  St.  Rep. 
348,  27  N.  E.  59,  rev'g  36  111.  App. 
552. 

Indiana.  Pittsburgh,  C,  C.  &  St. 
L.  R.  Co.  V.  Mitchell.  175  Ind.  196, 
91  N.  E.  735,  93  N.  E.  996. 

Michigan.  Thomas  v.  Blair,  185 
Mich.  422,  151  N.  W.  1041. 

Missouri.  Cudahy  Packing  Co. 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  193 
Mo.  App.  572,  187  S.  W.  149. 

New  York.  Blackstock  v.  New 
Ycrk  &  E.  R.  Co.,  20  N.  Y.  48,  75 
Am.  Dec.  372;  Weed  v.  Panama  R. 
Co..  17  N.  Y.  362,  72  Am.  Dec.  474. 

West  Virginia.  Karr  v.  Balti- 
more &  O.  R.  Co.,  76  W.  Va.  526, 
86  S.  E.  43. 


396 


Duties    to    Interstate    Shippers. 


[§  341 


been  in  the  path  of  the  flood  except  for  the  negligent 
delay  of  the  carrier,  the  shipper  was  entitled  to  re- 
cover/^ In  other  words,  these  courts  recognize  the  rule 
that  if  a  negligent  delay  concurred  with  the  act  of 
God  in  producing  the  damage,  the  carrier  is  liable.  But 
such  is  not  seemingly  the  rule  in  the  federal  courts,*- 
and  since  the  enactment  of  the  Carmack  amendment 
the  liability  of  carriers  to  shippers  of  interstate  freight, 
baggage  and  express  is  governed  by  common  law  prin- 


41.  Alabama.  Louisville  &  N. 
R.  Co.  V.  Gidley,  119  Ala.  523,  24 
So.  753. 

Illinois.  Wald  v.  Pittsburgh,  C, 
C.  &  St.  L.  R.  Co.,  162  111.  545,  35 
L.  R.  A.  356,  52  Am.  St,  Rep.  332, 
44  N.  E.  888,  rev'g  60  111.  App.  460. 

Iowa.  Green-Wheeler  Shoe  Co. 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  130 
Iowa  123,  5  L.  R.  A.  (N.  S.)  882,  8 
Ann.  Cas.  45,  106  N.  W.  498; 
Hewett  V.  Chicago,  B.  &  Q.  Ry.  Co., 
63  Iowa  611,  19  N.  W.  790. 

Maryland.  Baltimore  &  0.  R. 
Co.  V.  Keedy,  75  Md.  320,  23  Atl. 
643. 

Michigan.  Selleck  v.  Lake  Shore 
&  M.  S.  Ry.  Co.,  93  Mich.  375,  18 
L.  R.  A.  154,  53  N.  W.  556. 

Minnesota.  Bibb  Broom  Corn 
Co.  V.  Atchison,  T.  &  S.  F.  R.  Co., 
94  Minn.  269,  69  L.  R.  A.  509,  110 
Am.  St.  Rep.  361,  3  Ann.  Cas.  450, 
102  N.  W.  709. 

Missouri.  Pruitt  v.  Hannibal  & 
St.  .7.  R.  Co.,  62  Mo.  527;  Wolf  v. 
American  Exp.  Co.,  43  Mo.  421, 
97  Am.  Dec.  406. 

New  York.  Read  v.  Spaulding, 
30  N.  Y.  630,  86  Am.  Dec.  426: 
Michaels  v.  New  York  Cent.  R.  Co., 
30  N.  Y.  564,  86  Am.  Dec.  415. 

Texas.  Missouri,  K.  &  T.  R.  Co. 
V.  McFadden,  89  Tex.  138,  33  S.  W. 
853. 

Wisconsin.  Cook  v.  Minneapolis, 
St.  P.  &  S.  S.  M.  Ry.  Co.,  98  Wis. 


624,  40  L.  R.  A.  457,  67  Am.  St. 
Rep.  830,  74  N.  W.  561. 

42.  New  Orleans  &  N.  E.  R.  Co. 
V.  National  Rice  Milling  Co.,  234 
U.  S.  80,  58  L.  Ed.  1223, 
34  Sup.  Ct.  726;  Cau  v, 
Texas  &  P.  R.  Co.,  194  U.  S.  427, 
48  L.  Ed.  1053,  24  Sup.  Ct.  663; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Commercial  Union  Ins.  Co.,  139  U. 
S.  223,  35  L.  Ed.  154,  11  Sup.  Ct. 
554;  Western  Transp.  Co.  v.  Down- 
er, 11  Wall.  (U.  S.)  129,  20  L.  Ed. 
160;  Memphis  &  C.  R.  Co.  v. 
Reeves,  10  Wall.  (U.  S.)  176,  19 
L.  Ed.  909;  Empire  State  Cattle 
Co.  V.  Atchison,  T.  &  S.  F.  Ry.  Co., 
135  Fed.  135;  Thomas  v.  Lancaster 
Mills  of  Clinton,  Massachusetts,  19 
C.  C.  A.  88,  71  Fed.  481;  Seaboard 
Air  Line  Ry.  Co.  v.  Mullin,  70  Fla. 
450,  11  N.  C.  C.  A.  1,  L.  R.  A.  1916D 
982,  Ann.  Cas.  1918A  576,  70  So. 
467. 

"The  cause  of  the  loss  was  the 
fire,  kindled  by  some  unknown 
'  means,  and  in  no  way  arising  from 
or  connected  with  the  neglect  of 
the  defendant  to  furnish  transpor- 
tation. Upon  principle  and  au- 
thority, that  neglect  was  not  the 
direct  and  proximate  cause  of  the 
loss  by  fire,  and  did  not  make  ths 
defendant  responsible  for  that  loss 
to  the  owners  of  the  cotton  or  to 
their  insurers."  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Commercial  Union 
Ins.  Co.,  supra. 


§  341]     Duties    Under    Carmack    Amendment.         597 

ciples  as  accepted  and  enforced  in  the  federal  courts/' 
Under  the  federal  rule,  where  property  in  the  ])os- 
session  of  a  carrier  is  destroyed  by  an  act  of  God,  but 
would  not  have  been  so  lost  except  for  the  negligent 
delay  of  the  carrier,  the  act  of  God  is  the  ])roximate 
cause  of  the  loss  and  the  negligent  delay  of  the  car- 
rier is  too  remote  as  a  contributing  cause  to  entail  lia- 
bility."* "The  United  States  Supreme  Court  and  the 
courts  of  a  number  of  the  states  hold  that  a  delay  in 
transportation  which  places  the  shipment  in  the  track  of 
an  unprecedented  flood  is  a  remote  and  not  a  proximate 
cause  of  an  injury  to  the  shipment  by  the  flood,  and  the 
carrier  is  not  liable  merely  because  of  the  delay.  Such 
courts  base  the  exemption  of  the  carrier  from  liability 
upon  the  ground  that  the  delay  was  too  remote  and 
that  the  proximate  cause  of  the  injury,  towit,  the  de- 
structive act  of  God,  could  not  have  been  foreseen  and 
provided  against  as  a  probable  result  of  the  negligent 
delay.  In  this  view  the  carrier  is  held  not  liable  even 
though  the  injury  would  not  have  occurred  but  for  the 
previous  delay  in  transportation  which  caused  the  ship- 
ment to  be  in  the  track  of  the  flood.  "*^ 

But  if  the  carrier  independently  of  its  negligent 
delay  were  guilty  of  some  act  of  negligence  which  oper- 
ated as  an  active,  efficient  and  availing  cause  of  the  loss 
or  damage,  it  is  liable  even  under  the  federal  rule;"  or, 

43.  New  York  Cent.  &  H.  River      1,  L.  R.  A.  1916D   982,  Ann.  Cas. 
R.  Co.  V.  Beaham,  242  U.  S.  148,  61       1918A  576,  70  So.  467. 

L.  Ed.  210,  37  Sup.  Ct.  43;  Atchi-  Where  it  appears  that  the  loss 

son,  T.  &  S.  F.  R.  Co.  v.  Harold,  of    an    interstate    shipment    was 

241  U.  S.  371,  60  L.  Ed.  1050,  36  caused  by  an  extraordinary  flood, 

Sup.  Ct.  065;  Southern  Exp.  Co.  v.  the   prior   negligent   delay   of   the 

Byers,  240  U.  S.  612,  60  L.  Ed.  825,  carrier  is  a  remote  and  not  a  con- 

36    Sup.    Ct.   410,   L.   R.   A.   1917A  current     pro.ximate     cause     under 

197;   Southern  R.  Co.  v.  Presoott,  the    controlling    decisions    of    the 

240  U.  S.  632,  60  L.  Ed.  836,  36  Sup.  federal  courts.     Toledo  &  O.  C.  R. 

Ct.  469.  Co.  V.  Kibler,  Ohio  ,  119 

44.  See    cases    under    note    42,  N.  E.  733. 

stipra.  46.    Thomas   v.   Lancaster   Mills 

45.  Seaboard  Air  Line  Ry.  Co.  v.      of  Clinton,  Massachusetts,  19  C.  C. 
Mullin,  70  Fla.  450,  11  N.  C.  C.  A.       A.  88,  71  Fed.  481. 


5'9S  .  Duties    to    Intekstate    Shippers.  [§  341 

as  stated  by  the  supreme  court  of  Miunesota:''  "Under 
tlie  federal  rule  unless  the  carrier  is  chargeable  with 
some  negligence  other  than  delay  in  making  the  ship- 
ment, the  destruction  of  the  property  by  an  act  of  God, 
not  foreseen  in  time  to  guard  against  it  absolves  the 
carrier  from  liability.  *  *  *  Consequently  it  is  nec- 
essary to  determine  whether  there  is  evidence  tending 
to  prove  negligence  other  than  delay  without  which 
the  property  would  not  have  been  destroyed  by  the 
flood."  The  burden  of  proving  such  other  negli- 
gence rests  upon  the  plaintiff.*^ 

§  342.     Connecting  and   Terminal  Carriers  Liable 
under  Carmack  Amendment  as  Amended,  When.     The 

Court  of  Appeals  of  Georgia,  in  construing  the  Carmack 
amendment,  held  that  the  remedy  therein  provided 
against  the  initial  carrier  of  interstate  shipments  was 
exclusive  and  that  the  connecting  or  terminal  carriers 
were  not  liable  as  to  interstate  shipments  even  though 
it  be  shown  that  the  loss  or  damage  occurred  on  their 
lines.*^  But  the  remedy  provided  in  the  statute  against 
the  initial  carrier  is  not  exclusive,  for  an  action  may  be 
prosecuted  against  the  connecting  or  the  terminal  carrier 
when  the  loss  or  damage  is  shown  to  have  occurred  on 
its  line.'°     "This  amendment,"  said  the  supreme  court 

47.  Northwestern    Consol.    Mill-       241    U.   S.    190,   60   L.    Ed.   948,   36 
ing  Co.  V.  Chicago,  B.  &  Q.  R.  Co.,      Sup.  Ct.  541. 

135  Minn.  363,  15  N.  C.  C.  A.  745,  Georgia.     Central  of  Georgia  R. 

160  N.  W.  1028.  Co.  V.  Waxelbaum  Produce  Co.,  18 

48.  Memphis    &    C.    R.    Co.    v.  Ga.  App.  489,  89  S.  E.  635. 
Reeves,  10  Wall.  (U.  S.)  176,  19  L.  Louisiana.     Coate  Bros.  v.  New 
Ed.     909;     Northwestern     Consol.  Orleans  Terminal  Co.,  139  La.  958, 
Milling  Co.  v.  Chicago,  B.  &  Q.  R.  72  So.  678. 

Co.,  135  Minn.  363,  15  N.  C.  C.  A.  Maryland.    Baltimore,  C.  &  A.  R. 

745,  160  N.  W.  1028.  Co.  v.  William  Sperber  &  Co.,  117 

49.  Southern  R.  Co.  v.  Savage,      Md.  595,  84  Atl.  72. 

18    Ga.    App.    489,    89    S.    E.    634;  Missouri.     Collier  v.  Wabash  R. 

Southern  R.  Co.  v.  Bennett,  17  Ga.      Co.,  Mo.  App.  - —  190  S.  W. 

App.  162,  86   S.  E.  418;   Penning-  969. 

ton  v    Grand  Trunk  Western  Ry.  South  Dakota.       Elliott  v.   Chi- 

Co.,  199  111.  App.  479.  cago.  M.  &  St.  P.  R.  Co.,  35  S.  D. 

50.  United   States.    Georgia,   F.  57,  150  N.  W.  777. 
&  A.  R.  Co.  v.  Blish  Milling  Co., 


§  342]     DuTiKs     IJndkk    Carmack     Amendment. 


599 


of  Wisconsin,"  "clearly  gives  a  right  of  action  against 
the  initial  carrier.  But  is  such  remedy  exclusive!  The 
proviso  that  notliing  in  this  section  sliould  deprive  the 
holder  of  the  receipt  or  hill  of  lading  of  any  remedy  or 
right  of  action  which  he  has  under  existing  law  was  con- 
strued in  Adams  Express  Co.  v.  Croninger,  226  U.  S.  491. 
33  Sup.  Ct.  148,  57  L.  Ed.  314,  44  L.  R.  A.  (N.  8.)  257, 
to  mean  existing  federal  law  and  not  state  law.  So  the 
remedy  given  hy  the  amendment  was  additional  to  and 
concurrent  with  any  other  existing  federal  remedy.  The 
question,  therefore,  arises  whether,  under  federal  law 
prior  to  the  enactment  of  the  Carmaok  amendment,  a 
shipper  had  a  right  of  action  against  a  carrier  negli- 
gently causing  the  damage,  but  who  was  not  the  carrier 
with  whom  the  initial  contract  of  shipment  was  made. 
An  affirmative  answer  to  this  question  was  given  by  the 
Supreme  Court  of  the  United  States  in  the  case  of  the 
New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank, 


"The  Carmack  amendment 
merely  places  the  shipper  in  a 
position  where  he  may  be  able  to 
recover  for  injured  property  and 
relieve  himself,  often  times,  from 
the  task  of  locating  the  active 
tortfeasor.  But  if  the  shipper 
knows  which  one  amcng  a  num- 
ber of  carriers  caused  the  injury, 
he  may  sue  that  one  alone."  El- 
liott V.  Chicago,  M.  &  St.  P.  R.  Co., 
supra. 

"It  is  also  contended  by  the  ap- 
pellant that  this  suit  is  based  up- 
on the  Carmack  amendment  to  the 
Interstate  Commerce  Law,  and 
that,  under  this  amendment,  the 
initial  carrier,  and  the  initial  car- 
rier only,  is  liable  for  damages 
for  injuries  to  shipments  of  stock. 
In  this  case,  the  testimony  shows 
that  the  stock  were  delivered  in 
good  condition  to  the  Illinois  Cen- 
tral Railroad  Company  at  Louis- 
ville; that  they  were  delivered  to 
the  consignee  at  Holly  Springs, 
their   destination,   bv    the   Illinois 


Central  Railroad  Company,  in  a 
damaged  condition;  and  that  the 
damage  to  this  shipment  occurred 
while  they  were  in  the  hands  of 
the  defendant  railroad  company. 
This  being  true,  we  do  not  under- 
stand the  cases  cited  by  counsel  as 
sustaining  this  proposition  to  be 
applicable.  There  was  an  injury, 
a  tort,  committed  by  the  appellant 
company  to  the  appellee,  for  which 
a  cause  of  action  accrued  to  the 
appellee:  and  it  was  not  the  in- 
tention nor  purpose  of  the  Car- 
mack amendment  to  deprive  the 
consignee  of  a  cause  of  action 
which  he  had  by  common  law 
against  the  railroad  company  in 
cases  of  this  character.  In  fact, 
this  act  of  Congress  expressly 
negatives  any  such  idea."  Illinois 
Cent.  R.  Co.  v.  Mahon  Live  Stock 
Co.,  Ill  Miss.  496,  71  So.  802. 

51.  Bichlmeier  v.  Minneapolis. 
St.  P.  &  S.  S.  M.  R.  Co.,  159  Wis. 
401.  1.^0  N.  W.  508. 


600  Duties    to    Interstate    Shippers.  [§  342 

6  How.  344,  12  L.  Ed.  465,  and  so  far  as  we  liave  been 
able  to  discover  the  rule  there  announced  has  remained 
unchanged.  Such  are  also  the  uniform  holdings  of  state 
courts. "  Section  1,  Hutch.  Car.  (3d  Ed.)  sec.  236,  and 
cases  cited;  4  Ruling  Case  Law,  947  and  cases  cited. 
The  reason  of  the  rule  that  the  owner  of  the  goods  may 
proceed  directly  against  the  carrier  who  is  the  actual 
wrongdoer,  even  if  he  has  a  remedy  against  the  receiv- 
ing carrier,  is  that  each  carrier  is  an  agent  of  the  owner 
authorized  to  contract  with  the  connecting  carrier  for 
the  safe  transportation  of  the  shipm.ent  which,  when 
undertaken  by  such  carrier,  becomes  a  contract  with  the 
owner  for  a  breach  of  which  he  can  proceed  directly 
against  the  carrier  in  default." 

§  343.  Connecting  and  Terminal  Carriers  not  Liable 
for  Acts  of  Initial  Carrier.  But  the  connecting  and 
terminal  carriers  receiving  property  transported  in  inter- 
state commerce  are  not  liable  for  loss  or  damage  thereto 
while  in  possession  of  the  initial  carrier  in  the  absence 
of  an  agreement  to  the  contraiy." 

§  344.  Presumption  that  Loss  or  Damage  Occurred 
on  Line  of  Terminal  Carrier — Contrary  Rulings.  Under 
the  common  law  as  enforced  in  many  of  the  states,  it 
was  held  that  when  the  plaintiff  showed  the  good  con- 
dition of  the  goods  when  delivered  to  the  initial  carrier, 
and  that  the  goods  were  in  bad  or  damaged  condition 
when  delivered  by  the  terminal  carrier  to  the  consignee, 
a  presumption  arose  that  the  damage  occurred  on  the 
line  of  the  final  carrier.^^  Notwithstanding  the  enact- 
ment of  the  Carmack  amendment  making  the  initial 
carrier  liable  for  loss  or  damage  on  the  lines  of  any  of 
the  connecting  carriers,  some  courts  have  held  that  the 

52.  Knapp  v.  Minneapolis,  St.  Rep.  551,  7  So.  544;  Carr  v.  Chi- 
P.  &  S.  S.  M.  R.  Co.,  34  N.  D.  466,  cago,  R.  I.  &  P.  R.  Co.,  173  Iowa 
159  N.  W.  81.  444,    155    N.    W.    840;    Morganton 

53.  Montgomery  &  E.  R.  Co.  v.  Mfg.  Co.  v.  Chio  R.  &  C.  Ry.  Co., 
Culver,  75  Ala.  587,  51  Am.  Rep.  121  N.  C.  514,  61  Am.  St.  Rep.  679, 
483;    Savannah,  F.   &   W.   Ry.   Co.  28  S.  E.  474. 

V.  Harris,  26  Fla.  148,  23  Am.  St. 


§  345]     Duties    Under    Carmack    Amendment.         601 

federal  act  does  not  supersede  this  rule."'*  These  courts 
take  the  position  tliat  the  Carmack  amendment  did  not 
abrogate  the  rule  of  the  state  that  property  received  in 
good  order  by  tlie  initial  carrier  is  presumed  to  have 
been  received  in  like  order  by  the  succeeding  carrier, 
and  that  final  delivery  in  bad  order  raises  a  rebuttable 
presumption  that  the  injury  occurred  on  the  delivering 
carrier's  line.''"' 

On  the  other  hand,  if  Congress,  by  the  enactment  of 
this  statute,  raised  a  presumption  against  the  initial 
carrier,  a  presumption  that  the  last  carrier  is  to  blame 
resting  upon  state  rule  cannot  exist  side  by  side  with 
a  federal  statute  declaring  that  this  presumption  exists 
against  the  initial  carrier;  for  it  would  seem  to  be  a 
logical  impossibility  to  have  a  presumption  that  if  a 
shipment  which  started  in  good  condition  is  delivered 
in  damaged  condition,  the  last  carrier  damaged  it,  and, 
at  the  same  time,  have  one  available  in  the  same  case, 
upon  the  same  evidence,  that  the  initial  carrier  did  that 
damage.  Thus,  in  the  case  cited  in  the  notes,^*'  it  was 
held  that  the  presumption  of  damage  on  the  line  of  the 
final  carrier,  which  existed  prior  to  the  enactment  of 
the  Carmack  amendment,  has  been  effectually  destroyed 
by  the  declaration  of  the  statute  that  the  initial  carrier 
of  interstate  shipments  is  liable  no  matter  on  what  line 
the  damage  may  have  occurred. 

§  345.  Last  Carrier  not  Liable  in  Absence  of  Proof 
of  Damage  on  its  Line.  The  decisions  of  the  courts 
cited  in  the  foregoing  paragraph  holding  that  a  recovery 
may  be  had  against  the  terminal  carrier  of  freight  in 
interstate  commerce,  based  upon  the  common  law  pre- 
sumption that  property  starting  in  good  condition  re- 
mains so  until  the  last  moment  when  it  could  have  been 
harmed,  seems  to  be  also  in  conflict  with  the  decision  of 

54.  Erisman  v.  Chicago,  B.  &  Q.  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Har- 

R.  Co.,  Iowa  ,  163  N.  W.  rington,  44  Okla.  41,  143  Pac.  325. 

627.  56.    Carlton      Produce      Co.      v. 

55.  Duvall  V.  Louisiana  Western      Velasco,  B.  &  N.  Ry.  Co., Tex. 

R.   Co.,   135    La.    189,   65    So.    104:       Civ.  App.  ,  131  S.  W.  1187. 


602  Duties    to    Interstate    Shippers.  [§  345 

the  federal  Supreme  Court  in  Charleston  &  W.  C.  Ry. 
Co.  V.  "^"arnville  Furniture  Co."  In  that  case  an  inter- 
state shipment  from  a  point  in  North  Carolina  to  a  town 
in  South  Carolina  was  involved.  The  shipper  sued  the 
terminal  carrier  and  recovered  not  only  the  damages 
for  the  loss,  but  also  a  penalty  under  a  state  law  of  South 
Carolina.  The  damage  to  the  furniture  was  not  shown 
to  have  occurred  on  the  line  of  the  terminal  carrier,  but 
applying  the  substantive  law  of  the  state,  the  state  courts 
allowed  a  recovery  against  the  last  carrier  not  only  for 
the  damage,  but  for  the  penalty  as  well.  The  federal 
Supreme  Court  held  that  the  penalty  could  not  be  re- 
covered for  the  reason  that  it  had  been  superseded  by 
the  Carmack  amendment.  The  damages  allowed  and 
the  penalty  recovered  w^ere  separable;  but  the  court 
seems  also  to  have  decided  that  the  damages  were  not 
recoverable  as  well  as  the  penalty,  for  the  reason  that 
the  jDresumption  created  by  the  state  law  was  in  conflict 
with  the  Carmack  amendment.  "It  is  true  that  in  the 
opinion  of  the  Supreme  Court,"  said  Mr.  Justice  Holmes, 
"the  judgment  is  spoken  of  as  being  for  damage  done 
to  a  shipment  'while  in  defendant's  possession  in  this 
State,'  and  it  is  said  that  the  statute  limits  the  liability 
to  such  damage.  But  in  view  of  the  record  this  can 
mean  no  more  than  that  there  is  a  presumption  that  the 
carrier  that  fails  on  notice  to  point  out  some  other  as 
responsible  is  itself  in  fault.  The  defendant  happened 
to  be  the  last  carrier  of  the  line,  and  in  many  States, 
including  South  Carolina,  a  so-called  presumption  has 
been  established  at  common  law  that  property  starting 
in  good  condition  remained  so  until  the  latest  moment 
when  it  could  have  been  harmed.  But  while  this  seems 
to  have  made  its  first  appearance  in  the  guise  of  a  true 
presumption  of  fact,  it  became,  if  it  was  not  always,  a 
rule  of  substantive  law,  a  rule  of  convenience,  calling 
on  the  last  carrier  to  explain.  Willett  v.  Southern  Ry,, 
66  S.  Car.  477,  479.    Moore  v.  N.  Y.,  New  Haven  &  Hart- 

57.    237  U.  S.  597,  59  L.  Ed.  1137,      35   Sup.  Ct.  715,  Ann.   Cas.  1916D 

33^ 


§  345]     Duties    Under    Carmack     Amendment.         603 

ford,  R.  R.,  173  MasRachiisetts,  335,  337.     Tlie  rule  is 
stated  as  a  rule  of  policy  in  South  Carolina,  and  the  stat- 
ute makes  it  still  more  clearly  so,  since  with  the  limits 
that  we  have  stated,  it  applies  indifferently  to  any  car- 
rier in  the  line,  if  witiiin  tiie  State,  accordiuj?  to  the 
accident  of  the  plaintiff's  demand.     The  case  then,  we 
repeat,  is  that  a  carrier  in  interstate  commerce  has  l3een 
held  liable  for  a  loss  not  shown  to  have  happened  while 
the  goods  were  in  its  possession  or  within  the  State, 
or  to  have  been  caused  by  it,  if  those  facts  are  now  in 
any  way  material,  on  the  strength  of  a  rule  of  substan- 
tive law.   The  claims  dealt  with  in  Atlantic  Coast  Line 
Co.  V.  Mazursky,  216  U.  S.  122,  all  arose  before  June 
29,   1906,  the  date  of  the  Carmack  Amendment.     The 
South  Carolina  law  has  been  amended  and  enlarged  in 
scope  since  that  decision  but  it  is  less  necessary  to  scruti- 
nize those  changes  than  to  consider  the  modifications  of 
the  United  States  law.     As  it  now  stands  that  law  re- 
quires the  initial  carrier  to  issue  a  through  bill  of  lad- 
ing and  makes  it  liable  for  all  damage  anywhere  on  the 
route.     Sec.  20.     By  Sec.  1  as  amended  by  the  act  of 
June  18,  1910,  sec.  7,  c.  309,  36  Stat.  539,  546,  it  is  made 
the  duty  of  carriers  to  secure  the   safe  transportation 
and  delivery  of  property  subject  to  the  act,  upon  reason- 
able terms.    As  was  said  in  Missouri,  Kans.  &  Tex.  Rv. 
Co.  V.  Harris,  234  U.  S.  412,  420,  the  result   of  many 
recent  cases,  there  cited,  beginning  with  Adams  Express 
Co.  V.  Croninger,  226  U.  S.  491  and  coming  down  through 
Boston  &  Maine  R.  R.  v.  Hooker,  233  U.  S.  97,  is  that 
'the  special  regulations  and  policies  of  particular  States 
upon  the  subject  of  the  carrier's  liability  for  loss  or 
damage  to  interstate  shipments  and  the  contracts  of  car- 
riers with  respect  thereto,  have   been  superseded.'     It 
is  true  that  in  that  case  the  inclusion  of  the  attorney's 
fee  not  exceeding  $20  in  the  costs  upon  judgments  for 
certain  small  claims  was  upheld  although  incidentally 
including  some  claims  arising  out  of  interstate  commerce. 
But   apart   from   the   effect  being   only   incidental    the 
ground  relied  upon  was  that  the  statute  did  not  'in  any- 
wise enlarge     .     .     .     the  responsibility  of  the  carrier' 
for  loss  or  'at  all  affect  the  ground  of  recovery,  or  the 


604  Duties    to    Interstate    Shippers.  [§  345 

measure  of  recovery,'  pp.  420,  422.  The  South  Carolina 
Act,  on  the  other  hand  extends  the  liability  to  losses 
on  other  roads  in  other  jurisdictions  and  increases  it 
by  a  fine  difficult  to  escape.  It  overlaps  the  extent  of 
liability  for  loss." 

§  346.  Effect  of  Re-routing  or  Change  of  Destina- 
tion upon  Liability  of  Initial  Carrier.  An  initial  car- 
rier is  not  liable  for  loss  or  damage  to  goods  on  lines 
not  its  own,  and  over  which  they  were  routed  without 
notice  to  it;  because  the  obligation  of  the  initial  carrier 
ceases  when  the  goods  reach  the  destination,  in  good 
condition,  to  which  they  were  originally  intended  or  con- 
signed.^* This  principle  is  well  illustrated  in  a  case 
where  a  carload  of  shingles  was  delivered  to  the  Great 
Northern  R.  Co.  for  shipment  from  Sisco,  Wash.,  to  Kan- 
kakee, 111.  The  carrier  issued  a  bill  of  lading  and  routed 
the  shipment  over  its  own  line  of  railway,  and  over  the 
lines  of  the  Chicago,  B.  &  Q.  R.  Co.  and  other  carriers 
whose  lines  together  formed  a  continuous  line  of  rail- 
way from  Sisco  to  Kankakee.  The  shipper,  without 
notice  to  the  initial  carrier,  instructed  the  final  connect- 

58.  Barrett  v.  Northern  Pac.  R.  charged  from  all  obligations  there- 
Co.,  29  Idaho  139,  157  Pac.  1016,  under,  unless  it  be  shown,  which 
in  which  the  court  said:  "While  it  it  was  not,  that  they  were  damaged 
is  true  that  in  this  case  the  goods  en  route  between  the  above  men- 
were  first  delivered  by  respondents  tioned  points  due  to  negligence  in 
to  the  Chicago,  Burlington  &  transportation,  in  which  case  the 
Quincy  Railroad  Company  for  initial  carrier  would  be  liable  un- 
transportation,  and,  under  the  der  the  Carmack  amendment.  The 
terms  of  the  contract  then  entered  agreement  between  appellant  (con- 
in  to,  that  company  was  the  in-  necting  carrier)  and  respondents, 
itial  carrier  and  was  liable  for  any  prior  to  the  arrival  of  the  goods  in 
damage  which  might  result  due  to  Spokane  whereby  they  were  to  be 
its  negligence  or  to  the  negligence  transferred  from  that  city  to 
of    the    appellant    company    while  Rupert,    constituted    a    new    con- 


the  goods  were  enroute  from  Con- 

nelsville  to  Spokane,  it  is  also  true 

that  the  contract  in  question  was 

fully  performed  and  complied  with 

when  the  goods  reached  Spokane.       Railroad    Company,    and    one    to 

and    the    Chicago,    Burlington    &       which    that    company    was    not    a 

Quincy  Railroad  Company  was  dis-      party." 


tract,  entirely  separate  and  inde- 
pendent of  that  entered  into  with 
the  Chicago,  Burlington  &  Quincy 


"^  346]     Duties    Under    Carmack     Amendivtent.         605 

ing  carrier  named  in  the  bill  of  lading,  and  over  whose 
lines  the  sliipment  arrived  at  Kankakee,  to  divert  the 
shipment  to  a  point  in  New  Jersey.  The  terminal  car- 
rier, upon  receiving  snch  instructions,  issued  a  new  bill 
of  lading  and  forwarded  the  shipment  over  a  new  line 
of  connecting  railways  to  its  new  destination.  Under 
these  facts  the  court  properly  held  that  the  initial  car- 
rier was  not  liable  for  damages  to  the  shingles  incurred 
while  they  were  being  transported  from  Kankakee  to 
the  new  point  of  destination.''"  "Under  its  bill  of  lad- 
ing," said  the  court,  ''respondent  contracted  to  safely 
carry  and  deliver  the  shingles  at  Kankakee,  111.  Re- 
spondent assumed  no  other  nor  further  obligation.  There 
is  no  evidence  in  the  case  of,  nor  does  appellants  at- 
tempt to  show,  the  arrival  of  the  shingles  at  Kankakee 
in  a  damaged  condition.  Its  whole  theory  of  recovery 
is  that  the  respondent  is  the  initial  carrier,  and  hence 
liable  for  any  damage  to  the  shipment  en  route  to  its 
destination.  If  it  could  be  so  held,  respondent's  lia- 
bility is  coextensive  with  its  undertaking,  and  that  end- 
ed with  the  arrival  of  the  shingles  at  the  destination 
named  in  its  bill  of  lading — Kankakee,  111.  Allen  & 
Gilbert  Ramaker  Co.  v.  Canadian  Pac.  R.  Co.,  42  Wash. 
64,  84  Pac.  620,  7  Ann.  Cas.  468.  The  liability  of  re- 
spondent as  initial  carrier  could  not  be  extended  to  in- 
clude the  shipment  from  Kankakee  to  Palisades  Park, 
so  as  to  render  it  answerable  to  appellant  for  any  damage 
to  the  shingles  from  this  reshipment."  On  the  other 
hand,  the  court  of  appeals  of  Georgia  held  that  the  ini- 
tial carrier  of  a  shipment  from  Moorefield,  W.  Va.,  to 
Richmond,  Va.,  which,  upon  its  arrival  at  Richmond, 
was  reconsigned  to  Atlanta,  Ga.,  was  liable  for  damage 
to  the  shipment  while  being  transported  between  Rich- 
mond and  Atlanta.  It  appeared,  however,  in  this  case 
that  the  shipment  was  made  under  one  contract  from 
Moorefield  to  Atlanta.*" 

59.    Parker-Bell  Lumber  Co.   v.  GO.    Baltimore    &    O.    R.    Co.    v. 

Great  Northern  R.  Co.,  69   Wash  Montgomery  &  Co.,  19  Ga.  App.  29, 

123,  41  L.  R.  A.   (N.  S.)   1064,  124  90  S.  E.  740,  in  which  Broyles.  J., 

Pac.  389.  said:       "The       destination       was 


G06  Duties    to    Interstate    Shippers.  [§  347 

§  347.  Carriers  May  Limit  Liability  for  Value  of 
Property  at  Time  and  Place  of  Shipment.  Bills  of  lad- 
ing issued  by  carriers  for  the  transportation  of  property 
from  one  state  to  another  frequently  contain  clauses 
that  the  damages  for  loss  or  injury  shall  be  determined 
according  to  the  value  of  the  property  at  the  time  and 
place  of  shipment.  Although  the  statute  provides,  since 
the  passage  of  the  Cummins  amendment  that  no  con- 
tract, receipt,  rule  or  other  limitation  of  any  character 
whatsoever  shall  exempt  the  carrier  from  the  liability 
imposed  by  the  act,  such  stipulations  do  not  consti- 
tute a  limitation  of  liability  in  violation  of  the  Cummins 
amendment,  but  establish  a  certain  and  definite  means 
for  determining  the  measure  of  recovery  of  a  shipment 
that  has  been  lost  or  injured.  "Ma^^  the  carriers,"  said 
the  Commission,  ^^  "lawfully  provide  in  their  tariffs  and 
rate  schedules  that  their  liability  shall  be  for  the  full 
value  of  the  property  at  the  time  and  place  of  ship- 
ment? It  is  argued  that  such  a  provision  would  be  nei- 
ther a  limitation  of  the  amount  of  recovery  nor  a  repre- 
sentation or  agreement  as  to  value  within  the  meaning 
of  the  new  law.  It  is  argued  that  this  rule  would  re- 
lieve the  question  of  the  amount  of  liability  from  un- 
certainty, would  afford  a  reasonable  and  uniform  method 
of  determining  the  measure  of  recovery,  save  endless 
litigation  with  its  attendant  labor  and  expense,  and 
avoid  unjust  discriminations.    The  Cummins  amendment 

changed  from  Richmond  to  Atlanta  the  freight  charges  due  ii,  and 
by  the  consignees.  The  shipment  thereafter  a  new  bill  of  lading  had 
was  carried  from  the  point  of  been  issued  for  the  shipment  from 
origin — Moorefield,  W.  Va., — to  At-  Richmond,  Va.,  to  Atlanta,  then 
lanta,  Ga.,  under  one  contract,  the  there  would  have  been  a  new  ship- 
bill  of  lading  issued  by  the  defend-  ment,  and  the  railroad  issuing  this 
ant  company,  and  the  shipment  second  bill  of  lading  at  Richmond 
moved  under  a  through  rate  of  would  have  been  the  initial  carrier 
freight  from  the  point  of  origin  to  of  the  shipment  from  Richmond 
Atlanta,   the   final   destination,   as  to  Atlanta." 

appears  from  the  freight  bill.     If  61.    In  re  the  Cummins  Amend- 

the   defendant,   or   its   connection,  ment,   33   I.   C.   C.   682.     See   also 

had    delivered    the    shipment    at  Wallingford  v.  Atchison,  T.  &  S.  F 

Richmond,  demanded  a  surrender  Ry.    Co.,    —    Kan.    ,    167    Pac. 

of  its  bill  of  lading,  there  collected  1136. 


I 


<§  348]     J)uTiE.s    Undkr    Carmack    Amendment.         GOT 

clearly  places  upou  the  carriers  liability  for  the  full 
actual  loss,  damage,  or  injury  to  the  property  trans- 
ported wliicli  is  caused  by  them,  and  it  makes  unlaw- 
ful any  limitation  of  that  liability,  or  of  the  amount  of 
recovery  thereunder,  in  any  receipt,  bill  of  lading,  con- 
tract, rule,  regulation,  or  tariff  filed  with  this  Commis- 
sion, without  respect  to  the  manner  or  form  in  which 
such  limitation  is  sought  to  be  made.  The  loss  or  dam- 
age must,  apparently,  be  either  as  of  the  time  and  place 
of  shipment,  time  and  place  of  loss  or  damage,  or  time 
and  place  of  destination.  Where  rates  are  lawfully  de- 
pendent upon  declared  values,  the  property  and  the 
rates  are  classified  according  to  the  character  of  the 
property,  of  which  the  value  of  the  property  may  con- 
stitute an  element,  and  such  classification  is  necessarily 
as  of  the  time  and  place  of  shipment.  It  is  therefore 
believed  that  the  liability  of  the  carrier  may  be  limited 
to  the  full  value  of  the  property  so  classified  and  es- 
tablished as  of  the  time  and  place  of  shipment."  Such 
stipulations  in  bills  of  lading  were  frequently  held  to 
be  valid  under  the  Carmack  amendment  and  prior  to 
the  enactment  of  the  Cummins  amendments.^^ 

§  348.  Provisions  of  Shipper's  Contract  with  Ini- 
tial Carriers  Inure  to  Benefit  of  Connecting  Carrier. 
The  liability  of  any  carrier  of  interstate  freight  in  the 
route  over  which   the  merchandise   is  routed,  for   loss 

62.    Gulf,   C.   &   S.   F.   R.    Co.    v.  in  the  condition  in  which  it  should 

Texas  Packing  Co.,  244  U.  S.  31,  have  arrived  at  the  place  of  des- 

61   L.   Ed.   970,   37    Sup.   Ct.   487,  tination  and  its  market  value  in 

Pennsylvania  R.  Co.  v.  Olivit  Bros..  the  condition  in  which,  by  reason 

243  U.  S.  574,  61  L.  Ed.  908,  37  Sup.  of  the  fault  of  the  carrier,  it  did 

Ct.  468;  Brockman  v.  Missouri  Pac.  arrive.     New  York,  L.  E.  &  ^V.  R. 

R.  Co.,   195   Mo.  App.   607,   188   S  Co.  v.  Estill,  147  U.  S.  591,  616,  37 

W.  920;  Spada  v.  Pennsylvania  R  l.  Ed.  292,  304,  13   Sup.   Ct.  444. 

Co.,  86  N.  J.  L.  187,  92  Atl.  379;  ^he  stipulations  of  these  bills  of 

Wegener  v.   Chicago   &  N.  W.    R.  ^^^.^^  changed  this  rule  in  the  re- 


quirement  that   the   invoice   price 


Co.,  162  Wis.  322,  150  N.  W.  201. 

"Apart   from  the  stipulation   of 

these  bills  of  lading,  the  ordinary  ^^   the   place   of  shipment   should 

measure   of   damages   in   cases   of  ^^  the  basis  for  assessing  the  dam- 

this  sort  is  the  difference  between  ages."     Gulf,  C.  &  S.  F.  R.  Co.  v. 

the  market  value  of  the  property  Texas   Packing   Co.,   supra. 


608  Duties    to    Interstate    Shippers.  [§  348 

or  damage  is  that  imposed  by  the  Carmack  amendment 
as  amended  and  as  measured  by  the  original  contract 
of  shipment  so  far  as  it  is  valid  under  the  statute ;'''  for 
when  an  interstate  carrier  accepts  a  shipment  to  a  desti- 
nation over  the  lines  of  connecting  cariers,  the  contract 
made  by  it  governs  the  entire  transportation  and  a 
second  contract  exacted  from  the  shipper  by  a  connect- 
ing carrier  is  void."  It  follows,  therefore,  that  any  pro- 
vision in  the  contract  which  would  be  valid  in  behalf  of 
the  initial  carrier  likewise  inures  to  the  benefit  of  the 
connecting  carriers.*"'^  For  example,  a  provision  in  a 
bill  of  lading  providing  for  an  agreed  valuation  of  the 
property  in  the  case  of  loss  or  accident  in  consideration 
of  a  reduced  rate  inures  to  the  benefit  of  a  terminal 
carrier  when  the  property  is  destroyed  while  in  its  cus- 
tody as  a  warehouseman."'^  The  Carmack  amendment 
as  applied  to  connecting  or  terminal  carriers  gives  them 
the  benefit  of  all  lawful  conditions  or  provisions  in  the 
contract  made  by  the  shipper  with  the  initial  carrier.''^ 

63.  Chicago,  St.  P.,  M.  &  0.  R.  683,    33    Sup.    Ct.    391;     Burke    v. 

Co.  V.  Latta,  226  U.  S.  519,  57  L.  Union  Pac.  R.  Co., N.  Y.  App. 

Ed.  328,  33  Sup.  Ct.  155;   Chicago,  Div.   ,   166   N.   Y.   Supp.    100; 

B.  &  Q.  R.  Co.  V.  Miller,  226  U.  S.  Piper  v.  Boston  &  M.  R   R.,  90  Vt. 

513,  57  L.  Ed.  323,  33  Sup.  Ct.  155;  176,  97  Atl.  508. 

Adams  Exp.  Co.  v.  Croninger,  226  66.    Cleveland,  C,  C.  &  St.  L.  R. 

U.  S.  491,  i,l  L.  Ed.  314,  33  Sup.  Ct.  Co.  v.  Dettlebach,  239  U.  S.  588,  60 

148,  44  L.  R.  A.   (N.  S.)   257.  L.  Ed.  453,  36  Sup.  Ct.  177. 

64.  Missouri,  K.  &  T.  R.  Co.  of  67.    Erisman  v.  Chicago,  B.  &  Q. 

Texas  v.  Ward,  244  U.  S.  383,  61      R.  Co.,  Iowa  ,  163  N.  V/. 

L.  Ed.  1213,  37  Sup.  Ct.  617.  627. 

65.  Kansas  City  Southern  R.  Co. 
V.   Carl,  227  U.   S.   639,  57  L.  Ed. 


CHAPTER  XVIII 

The  Fk-Dkhaf.   I^iiu.  ok  T.adinc  Law. 

Sec.  349.    Origin  and  General  Scope  of  the  Federal  Bill  of  Lading  Law 
Sec.  350.    Constitutionality  and  Validity  of  the  Act. 
Sec.  351.    Leading   Provisions    of    Act— Rule    in    Friedlander    v.    Te.xas 
&  Pacific  R.  Co.,  Modified. 

§  349.  Origin  and  General  Scope  of  the  Federal  Bill 
of  Lading  Law.  Tluj  Act  of  Congress  commonly  known 
as  the  Federal  Bill  of  Lading  Law  was  approved  on 
August  29th,  1916,  and  became  effective  on  and  after 
January  1st,  1917.'  It  was  the  result  of  the  labor  of 
the  Commissioners  on  uniform  state  laws  of  the  Ameri- 
can Bar  Association,  after  repeated  conferences  with  rep- 
resentatives of  the  American  Bankers  Association,  the 
railroad  associations  and  the  shippers'  association.  It 
was  originally  i)repared  for  the  purj^ose  of  having  it 
presented  to  the  several  State  legislatures  with  a  view 
of  providing  uniform  legislation  upon  the  subject.  It 
became  the  law  in  several  of  the  leading  commercial 
States — Connecticut,  Illinois,  Iowa,  Louisiana,  Massa- 
chussets,  Maryland,  Michigan,  New  York,  Ohio  and 
Pennsylvania.  The  federal  act  does  not  vary  substantial- 
ly from  the  acts  passed  by  the  legislatures  of  the  States 
just  named,  save  that  it  is  made  to  ap])ly  to  interstate 
and  foreign  commerce. 

The  general  scope  of  the  Act  is  defined  in  section 
1  thereof  which  provides  that  bills  of  lading  issued  by 
any  common  carrier  for  the  transportation  of  goods  in 
any  territory  of  the  United  States,  or  the  District  of 
Columbia,  or  from  a  place  in  a  State  to  a  place  in  a 
foreign  country,  or  from  a  place  in  one  State  to  a 
place  in  another  State,  or  from  a  place  in  one  State 
to  a  place  in  the  same  State  through  another  State  or 
foreign  country,  shall  be  governed  by  the  act.  In 
substance,  the  act  constitutes  a  codification  of  the  law 

1.     For  full  copy  of  Act  see  ap-     pendix  C,   infra. 

(609) 

1    I'ontrol    farilers    ."50 


610 


Duties    td    Interstate    Shippers. 


[^  349 


and  principles  controlling  interstate  and  foreign 
shipments.  It  defines  the  rights  and  liabilities  of  the 
common  carriers,  consignors,  consignees,  and  all  other 
immediate  owners  or  holders  of  bills  of  lading. 

§  350.     Constitutionality  and  Validity  of  the  Act. 

Since  Congress  has  full  and  plenary  power  over  inter- 
state and  foreign  commerce,  it  is  manifest  that  most 
of  the  provisions  of  the  Federal  Bill  of  Lading  Act  con- 
stitute a  proper  exercise  of  the  power  of  Congress  under 
the  commerce  clause.^  But  in  the  discussion  of  the  bill 
while  pending  in  Congress  some  doubt  was  expressed 
as  to  the  constitutionality  of  those  provisions  of  the  act 
relating  to  the  transfer  or  negotiation  of  bills  of  lading.^ 


2.     See  Section   5  and   14,  supra. 

3.  The  foUowing  coUoquy  be- 
tween Professor  Williston  and  Sen- 
ator Pomerene  durins  a  congres- 
sional hearing  in  1912  involving 
the  same  bill,  suggests  the  consti- 
tutional question  raised  by  some 
of  the  provisions  of  the  bill: 

"Senator  Pomerene.  Professor, 
in  referring  to  the  bill  which  bears 
my  i;ame — and  I  confess  to  be  the 
only  stepfather  to  that  bill,  al- 
though I  am  in  hearty  approval 
of  it — you  said  you  had  some  ques- 
tion as  to  the  constitutionality  of 
certain  provisions.  What  provi- 
sions did  you  have  in  mind? 

Mr.  Williston.  Part  3,  and  one 
section  of  the  criminal  provision. 

Senator  Pomerene.  That  is  sec- 
tion 3? 

Mr.  Williston.  No;  Part  3.  I 
beg  your  pardon.  The  bill  in  the 
State  was  divided  into  four  parts; 
It  is  not  so  divided  as  it  stands 
before    you. 

Senator  Pomerene.  I  have  here 
a  copy  of  the  bill. 

Mr.  Williston.  Yes;  but  that 
does  not  state  the  parts  as  It  did 
in  the  other  bill. 


Section  28  to  43,  inclusive,  re- 
late to  dealings  in  bills  of  lading 
between  third  parties,  neither  of 
whom  is  the  carrier.  That  is,  to 
the  negotiation  and  transfer — 

Senator  Pomerene.  To  the  nego- 
tiation simply  of-  the  bills  of  lad- 
ing? 

Mr.  Williston.  Yes,  sir.  And  it 
is  that  part  which  troubles  me. 

Senator  Pomerene.  Now,  state 
briefly,  if  you  can,  what  difficul- 
ties you  see  in  connection  with 
that  matter? 

Mr.  Williston.  The  clear  ground 
of  supporting  Senate  bill  957  is 
that  the  railroad  is  an  instrument 
of  interstate  commerce,  and  Con- 
gress has  a  right  to  say  what  bills 
of  lading  a  railroad  shall  issua, 
and  what  shall  be  its  liabilities  on 
that  instrument.  Now  suppose 
that  instrument  goes  into  the 
hands  of  A,  a  third  person,  and  A 
pledges  it  to  a  bank  in  Ohio: 
Query:  Does  the  fact  that  that  bill 
was  originally  issued  by  a  railroad, 
an  instrument  of  interstate  com- 
merce, give  Congress  the  right  to 
say  what  is  the  effect  of  the 
pledge  by  A,  an  outside  holder  of 


§  350  Federal  Bill  of  Lading   Law.  611 

The  constitutionality  of  these  provisions  was  thus  dis- 
cussed by  the  Senate  Committee  on  interstate  commerce 
in  its  report  accompanying  the  Bill:  "The  Constitution 
vests  Congress  with  power  'to  regulate  commerce  witli 
foreign  nations  and  among  the  several  States  and  with 
the  Indian  tribes.'  This  authority  is  very  broad,  very 
comprehensive.  It  covers  all  phases  and  features  of 
interstate  commerce.  It  touches  not  only  the  property 
of  the  railroad,  but  all  of  its  instrumentalities.  It  con- 
trols and  protects  its  operation  and  its  business.  The 
shipment  of  goods  from  one  State  to  another  is  surely 
interstate  commerce.  If  so,  when  it  comes  to  the  physi- 
cal property  itself,  can  there  be  any  doubt  that  the  same 
power  extends  to  all  of  the  instrumentalities  used  in  the 
conveyance  of  the  property,  or  to  any  contract  which 
may  pertain  to  it  for  the  safeguarding  of  the  parties 
interested?  If  the  goods  which  are  shipped  from  one 
State  to  another  be  interstate  commerce,  are  we  going 
far  afield  when  we  say  that  the  bill  of  lading,  which  is 
the  symbolic  representative  of  the  goods,  is  also  inter- 
state commerce  ?  The  Committee  will  not  take  the  time 
to  discuss  all  of  the  decisions  of  our  Supreme   Court 

the   bill,   to   B,   a   bank   In    Ohio?         Mr.  Williston.    As  between  them- 

That  is  my  difficulty.  selves.     That  is  the  matter  dealt 

Senator  Pomerene.     It  is  still  a  with  in  these  sections  that  I  have 

contract    pertaining    to    interstate  alluded   to— the   rights   of   A   and 

commerce?  B   as  between   one  another? 

Mr.  Williston.    Yes,  sir.  Senator   Pomerene.     Your   posi- 

Senator     Pomerene.       This     is  tion  is  that  in  that  respect  then  the 

simply     an     offhand     suggestion:  transferee  of  the  bill  of  lading  will 

Would  not  the  holder  take  it  sub-  be  essentially  different  from  that 

ject  to  any  of  its  provisions  and  its  of  the  original  consignor? 
liabilities,  whatever  they  may  be?  Mr.  Williston.     A  bill  of  lading 

Mr.  Williston.    The  holder  would  is  both  a  contract  and  a  svmbol  of 

take  the  rights  given  by  the  bill  title  to  the  goods.     In  so  far  as  It 

against  the  railroad,  and  I  think  .•     „   „«„x„„„t    ...  x       .     < 

.r   ,  ,       ^  ,  ^s  a  contract,  it  is  a  contract  of 

it  clear  that  Congress  would  have  x,  ,,        , 

the  right  to  say  what  these  rights  ^'  '^"'^^'^  comi?auy,  and  B    gets 

shall  be  against  the  railroad.    But  '^^     '°°*^^^^     "^^^^    ^^^^^^    t^« 

can  Congress  say  what  are  the  rel-  consignor     bargains     for     against 

ative  rights  of  A  and  B  as  against  ^^^  railroad  company.     But  as  to 

one  another?  the  property  rights  which  B  gets 

Senator  Pomerene.     As  between  from  A,  that  depends  upon  what  A 

A  and  B?  owns.  In  a  large  measure." 


(il2  Duties    to    Inteestate     Shippers.  [§  350 

bearing  iii)oii  this  subject.  We  shall  only  refer  to  a  few 
of  them:  In  1911  the  Supreme  Court  had  before  it  the 
case  of  the  Soutliern  Railway  Co.  v.  the  United  States. 
The  statute  involved  was  what  is  commonly  known  as 
the  'Safety  Appliance  Act'  of  March  2nd,  1893,  as  amend- 
ed March  2nd,  1903.  Its  regulatory  features  applied  to 
all  locomotives,  cars,  and  similar  vehicles  used  on  any 
railway  that  is  a  highway  of  interstate  commerce,  and 
were  not  confined  exclusively  to  vehicles  engaged  in 
such  commerce.  In  the  syllabus  of  the  case,  222  U.  S. 
20,  the  court  says:  The  power  of  Congress  under  the 
commerce  clause  of  the  Constitution  is  plenary  and  com- 
petent to  protect  i)ersons  and  property  moving  in  inter- 
state commerce  from  all  danger,  no  matter  what  the 
source  may  be;  to  that  end,  Congress  may  require  all 
vehicles  moving  on  highways  of  interstate  commerce 
to  be  so  equipped  as  to  avoid  danger  to  x^ei'sons  and 
property  moving  in  interstate  commerce.  It  is  of  com- 
mon knowledge  that  interstate  and  intrastate  commerce 
are  commingled  in  transportation  over  highways  of  inter- 
state commerce,  that  trains  and  cars  on  the  same  rail- 
ways, whether  engaged  in  one  form  of  traffic  or  the  other, 
are  interdependent  and  that  absence  of  safety  appliances 
from  any  part  of  a  train  is  a  menace  not  only  to  that 
train  but  to  others.  Mr.  Justice  Van  Devanter,  in  de- 
livering the  opinion  of  the  court,  on  page  26,  says:  We 
come  then  to  the  question  whether  these  Acts  are  with- 
in the  power  of  Congress  under  the  commerce  clause  of 
the  Constitution,  considering  that  they  are  not  confined 
to  vehicles  used  in  moving  interstate  traffic,  but  em- 
brace vehicles  used  in  moving  intrastate  traffic.  The 
answer  to  this  question  depends  upon  another,  which 
is.  Is  there  a  real  or  substantial  relation  or  connection 
between  what  is  required  by  these  Acts  in  respect  of 
vehicles  used  in  moving  intrastate  traffic  and  the  object 
which  the  Acts  obviously  are  designed  to  attain,  namely, 
the  safety  of  interstate  commerce  and  of  those  who  are 
employed  in  its  movement?  Or,  stating  it  in  another 
way.  Is  there  such  a  close  or  direct  relation  or  connec- 
tion between  the  two  classes  of  traffic,  when  moving  over 
the  same  railroad,  as  to  make  it  certain  that  the  safety 


<S  350  Federal  Bill  of  Lading  Law.  Glo 

of  interstate  traffic  and  of  those  who  are  employed  in 
its  movement  will  be  promoted  in  a  real  or  substantial 
sense  ])y  applyin^jf  tin*  re(inireinonts  of  tliese  Aets  to 
vehicles  used  in  moving  the  tiaflic  wliich  is  intrastate 
as  well  as  to  those  in  movini^-  that  which  is  interstate? 
If  the  answer  to  this  question,  as  doubly  stated,  be  in 
the  affirmative,  then  the  principal  question  must  be 
answered  in  the  same  way.  And  this  is  so  not  because 
Congress  possesses  any  ])ower  to  regulate  intrastate  com- 
merce as  such,  but  because  its  power  to  regulate  inter- 
state commerce  is  plenary  and  competently  may  be  ex- 
erted to  secure  the  safety  of  the  persons  and  property 
transported  therein  and  of  those  who  are  employed  in 
such  transportation,  no  matter  what  may  be  the  source 
of  the  dangers  which  threaten  it.  That  is  to  say,  it 
is  no  objection  to  such  an  exertion  of  this  power  that 
the  dangers  intended  to  be  avoided  arise,  in  whole  or 
in  part,  out  of  matters  connected  with  intrastate  com- 
merce. In  the  same  report,  on  page  370,  Mr.  Chief 
Justice  White  handed  down  the  opinion  of  the  Supreme 
Court  in  Northern  Pacific  Ry.  v.  State  of  "Washington. 
The  case  involved  the  validity  of  the  Act  of  Congress 
known  as  the  *  hours  of  service  law,'  passed  March  4th, 
1907.  In  the  syllabus  the  court  says:  A  train  moving 
and  carrying  freight  between  two  points  in  the  same 
State,  but  which  is  hauling  freight  between  points  both 
without  the"  State,  is  engaged  in  interstate  commerce 
and  subject  to  the  laws  of  Congress  enacted  in  regard 
thereto.  On  page  377  the  court  quotes  approvingly  the 
language  of  the  Supreme  Court  of  the  State  of  Washing- 
ton, as  follows:  The  power  of  Congress  to  regulate 
interstate  commerce  is  plenary,  and  that,  as  an  incident 
to  this  power,  the  Congress  may  regulate  by  legisla- 
tion the  instrumentalities  engaged  in  the  business,  and 
may  prescribe  the  number  of  consecutive  hours  an  em- 
ployee of  a  carrier  so  engaged  shall  be  required  to  re- 
main on  duty;  and  that  when  it  does  legislate  upon  a 
subject  its  act  supersedes  any  and  all  State  legislation 
on  that  particular  subject.  The  court  cites  in  support 
of  this  doctrine  a  number  of  its  former  decisions.  In 
fact,  this  proposition  is  not  regarded  by  the  courts  as 


614  Duties    to    Interstate    Shippers.  [<§>  350 

debatable.  lu  Illinois  Central  R.  R.  Co.  v.  Bebrens, 
administrator  (233  U.  S.,  p.  473),  the  court  says:  'When 
a  railroad  is  a  highway  of  both  interstate  and  intra- 
state commerce,  and  the  two  classes  of  traffic  are  inter- 
dependent in  point  of  both  movement  and  safety,  Con- 
gress may,  imder  the  power  committed  to  it  by  the  com- 
merce clause  of  the  Constitution,  regulate  the  liability 
of  the  carrier  for  injuries  suffered  by  an  employee  en- 
gaged in  general  work  pertaining  to  both  classes  of 
commerce,  whether  the  particular  service  performed 
at  the  time  isolatedly  considered,  is  interstate  or  intra 
state  commerce.'  In  St.  Louis,  Iron  Mountain  &  South- 
ern Railway  Company  v.  Edwards  (227  U.  S.,  265),  the 
Supreme  Court  held  that —  'As  applied  to  interstate 
shipments,  the  State  cannot  oppose  penalties  for  delay 
in  delivery  to  consignee,  as  Congress  has  acted  on  that 
subject  by  the  passage  of  the  Hepburn  Act.'  In  Adams 
Express  Co.  v.  Croninger  (226  U.  S.,  491)  Mr.  Justice 
Lurton  at  page  500,  says:  'That  the  constitutional 
power  of  Congress  to  regulate  commerce  among  the 
States  and  with  foreign  nations  comprehends  power  to 
regulate  contracts  between  the  shipper  and  the  carrier 
of  an  interstate  shipment  by  deiining  the  liability  of  the 
carrier  for  loss,  delay,  injury,  or  damage  to  such  prop- 
erty needs  neither  argument  or  citation  of  authority. 
That  the  legislation  (of  Congress)  supersedes  all  the 
regulations  and  policies  of  a  particular  State  upon  the 
same  subject  results  from  its  general  character.  It  em- 
braces the  subject  of  the  liability  of  the  carrier  under 
a  bill  of  lading  which  he  must  issue  and  limits  his  power 
to  exempt  himself  by  rule,  regulation,  or  contract.  Al- 
most every  detail  of  the  subject  is  covered  so  complete- 
ly that  there  can  be  no  rational  doubt  but  that  Congress 
intended  to  take  possession  of  the  subject  and  super- 
sede all  State  regulation  with  reference  to  it.  Only  the 
silence  of  Congress  authorized  the  exercise  of  the  police 
power  of  the  State  upon  the  subject  of  such  contracts. 
But  when  Congress  acted  in  such  a  way  as  to  manifest 
a  purpose  to  exercise  its  conceded  authority,  the  regulat- 
ing power  of  the  State  ceased  to  exist.'  In  Houston 
&  Texas  Ry.  v.  United  States  (234  U.  S.,  343),  the  Ian- 


^  350  Federal  Bill  of  Lading  Law.  615 

guage  of  tlie  syllabus,  in  part,  is:  'Tlie  object  of  the 
commerce  clause  was  to  prevent  interstate  trade  from 
being  destroyed  or  impeded  by  the  rivalries  of  local 
governments;  and  it  is  the  essence  of  the  complete  and 
paramount  power  confided  to  Congress  to  regulate  inter- 
state commerce  that  wherever  it  exists  it  dominates. 
Wherever  the  interstate  and  intrastate  transactions  of 
carriers  are  so  related  that  the  government  of  the  one 
involves  the  control  of  the  other,  it  is  Congress  and  not 
the  State  that  is  entitled  to  prescribe  the  final  and  domi- 
nate rule;  otherwise  the  Nation  would  not  be  supreme 
within  the  national  field.  While  Congress  does  not 
possess  authority  to  regulate  the  internal  commerce  of 
a  State,  as  such,  it  does  possess  power  to  foster  and  pro- 
tect interstate  commerce,  although  in  taking  necessary 
measures  so  to  do  it  may  be  necessary  to  control  intra- 
state transactions  of  interstate  carriers.  The  use  of  the 
State  of  an  instrument  of  interstate  commerce  in  a  dis- 
criminatory manner  so  as  to  inflict  injury  on  any  part 
of  that  commerce  is  a  ground  for  Federal  intervention, 
nor  can  a  State  authorize  a  carrier  to  do  that  which 
Congress  may  forbid  and  has  forbidden.'  Again  in 
Chicago,  R.  I.  &  Pac.  Ry.  v.  Hardwick  Elevator  Co. 
(226  U.  S.,  427),  it  was  held  that—  'There  can  be  no 
divided  authority  over  interstate  commerce,  and  regula- 
tions of  Congress  on  that  subject  are  supi^eme.  As  to 
those  subjects  upon  which  the  States  may  act  in  the  ab- 
sence of  legislation  by  Congress,  the  power  of  the  State 
ceases  the  moment  Congress  exerts  its  paramount  au- 
thority thereover.'  Now  let  us  apply  the  doctrine  of 
these  cases  to  the  Bill  under  consideration.  They  show 
conclusively  that  if  Congress  passes  this  Bill,  it  will 
supersede  all  State  legislation  upon  the  subject.  It  is 
urged  b)^  those  who  oppose  this  bill  that  if  goods  be 
sent  from  New  York  to  Cleveland  and  the  bill  of  lading- 
is  indorsed  and  transferred  by  "one  citizen  of  Cleveland 
to  another  citizen  of  Cleveland,  within  the  State  of  Ohio, 
it  is  an  intrastate  transaction  and  cannot  be  controlled 
by  Congress.  As  applied  to  an  ordinary  contract,  if 
there  be  no  other  facts  involved,  this  position  would  be 
correct.    But  we  answer,  the  lines  of  shipment  are  inter- 


616  Duties    to   Interstate    Shippers.  [§  350 

state  lines;  the  trains  carryiuo-  the  goods  from  one  State 
to  another  are  'instrumentalities'  employed  in  inter- 
state commerce,  the  shipment  of  the  goods  from  one 
State  to  another  is  interstate  commerce,  and  in  order 
to  define  the  rights  and  liabilities  of  the  carrier,  the 
consignor,  consignee,  and  immediate  owners,  both  law 
and  public  policy  reqnire  that  the  company  shall  issue 
bills  of  lading.  Can  it  be  said  that  the  bill  of  lading, 
which  is  the  representative  of  this  interstate  business, 
defining  the  rights  and  liabilities  of  all  concerned,  is 
not  a  contract  relating  to  interstate  commerce,  and  there- 
fore not  controlled  by  its  principles!  Those  who  object 
to  the  bill  admit  that  interstate  shipments  are  subject 
to  Federal  control,  save  only  where  it  relates  to  a  trans- 
fer of  the  bill  of  lading  within  a  State  between  citizens 
of  that  State.  If  Congress  assumes  control  of  this  legis- 
lation affecting  interstate  commerce,  must  it  continue 
to  divide  its  authority  with  the  State  when  it  comes 
to  the  mere  negotiation  and  transfer  of  a  bill  of  lading 
between  two  citizens  of  the  same  State  within  the  State, 
but  under  all  other  circumstances  the  State  shall  have 
no  control?  If  such  be  the  case,  what  becomes  of  tlie 
doctrine  that  the  power  of  Congress  is  plenary  after  it 
has  once  assumed  to  legislate  upon  a  given  subject"? 
If  so,  would  the  Federal  law  supersede  State  legisla- 
tion? If  Congress  has  the  power  to  compel  safety  ap- 
pliances to  be  placed  on  cars  used  both  in  interstate  and 
intrastate  transportation  over  interstate  highways  in 
order  to  insure  the  safety  of  interstate  traffic,  as  was 
held  in  Southern  Railway  v.  United  States,  above  cited; 
if  it  has  power  to  describe  the  number  of  consecutive 
hours  of  a  crew  moving  a  train  from  one  point  to  an- 
other in  the  State  of  Washington,  hauling  merchandise 
from  points  in  the  State  to  points  without  the  State,  as 
well  as  in  carrying  merchandise  through  the  State  from 
a  point  without  the  State  to  a  foreign  destination,  in 
view  of  the  unity  and  indivisibility  of  the  service  of  the 
train  crew  and  the  paramount  character  of  the  authority 
of  Congress  to  regulate  commerce,  as  was  held  in  North- 
ern Pacific  Railway  v.  State  of  Washington,  above  cited; 
if  Congress  has  the  power  to  regulate  the  carrier's  lia- 


§  350]  P'edehal    1^11. 1.   OK    Lakinc    \^a\\  .  ()17 

bility  foi-  iiijiii'ies  to  an  ciiiployee  ocf^urrin^;  upon  a  high- 
way of  both  interstate  and  inti'astate  eoniinerce  where 
tlie  two  kinds  of  trallic  are  interdei)en(h'nt  in  point  of 
movement  and  safety  and  wliere  tiie  injniies  were  suf- 
fered wliile  the  eini)loyee  was  enj^a.^cd  in  <<en«M-al  woi'k 
])ertaining-  to  botli  elases  of  commeree,  wliether  the  jjaili- 
eiilar  service  performed  at  the  time  isolated iy  considered 
is  interstate  or  intrastate  commerce,  as  was  hehl  in  Illi- 
nois Central  I?aili'oad  Co.  v.  Behrens,  administrator, 
above  cited;  it'  the  State  cannot  impose  penalties  for 
delay  and  delivery  to  a  consignee  because  Congress  has 
acted  upon  tliat  subject  by  the  passage  of  the  Hepburn 
Act,  as  was  held  in  St.  Louis,  etc..  Railway  v.  Edwards, 
above  cited;  and  if  when  Congress  acts  in  such  a  way 
as  to  manifest  its  purpose  to  exercise  its  conceded  au- 
thority, the  regulatory  ]")Ower  of  the  State  ceases  to 
exist,  as  was  held  in  Adams  Express  Co.  v.  Croninger, 
above  cited,  are  we  going  far  afield  when  we  conclude 
that  if  (A)ngi'ess  decides  to  regulate  a  bill  of  lading 
from  the  time  it  is  issued  until  it  is  spent  it  su])ersedes 
the  authority  of  the  State  to  control  such  bill  in  its 
transfer  from  one  citizen  of  a  State  to  another  citizen 
within  that  State?  Paraphrasing  the  language  of  Mr. 
Justice  Van  Devanter,  may  not  this  power  of  Federal 
control  be  exerted  to  secure  the  safety  of  the  property 
transported  therein,  no  matter  what  may  be  the  source 
of  the  danger  which  threatens,  whether  it  be  by  trans- 
fer or  negotiation  between  two  parties  residing  in  dif- 
ferent States,  or  in  the  same  State?  Can  we  not  say, 
again  borrowing  the  thought  of  the  learned  Justice, 
that  it  is  no  objection  that  the  dangers  intended  to  be 
avoided  arise  in  whole  or  in  part  out  of  matters  connect- 
ed with  intrastate  commerce?  Would  it  not  be  hyper- 
critical to  say  that  the  bill  of  lading  thus  relating  to 
interstate  shipments  is  valid  and  binding  on  all  parties 
concerned  from  the  day  it  is  issued  to  the  day  it  is 
spent,  and  subject  to  the  control  of  Congress  at  all  times, 
save  only  when  it  is  transferred  or  negotiated  by  or  be- 
tween two  citizens  of  the  State  within  the  same  State? 
Is  it  bound  to  say  the  Federal  law  can  regulate  its  is- 
suance and  operation  before  it  is  thus  transferred  or 


618  Duties    to    Interstate    Shippers.     *     [§  350 

negotiated  between  two  citizens  of  the  same  State,  and 
resume  its  jurisdiction  immediately  after  it  is  thus  trans- 
ferred or  negotiated  between  them,  provided  the  subse- 
quent transfers  or  negotiations  shall  be  between  citizens 
of  different  States?  Must  Congress,  after  it  has  assumed 
jurisdiction,  surrender  it  for  a  moment  of  time  to  the 
State  authorities  only  to  resume  it  again  after  a  certain 
contingency?  If  so,  what  becomes  of  the  doctrine  of 
our  Supreme  Court  that  when  Congress  does  legislate 
upon  a  subject  its  act  supersedes  any  and  all  State  legis- 
lation on  that  particular  subject!  A  careful  study  of 
these  decisions  of  our  Supreme  Court  force  the  conclu- 
sion that  the  constitutional  objections  raised  are  not 
sound." 

§  351.  Leading  Provisions  of  Act— Rule  in  Fried 
lander  v.  Texas  &  Pacific  R.  Co.  Modified.  A  summary 
of  the  leading  provisions  of  the  Federal  Bill  of  Lading- 
Law  with  its  eifect  upon  some  prior  decisions  of  the 
federal  Supreme  Court  was  contained  in  the  report  of 
the  Senate  Committee  on  interstate  commerce  when 
the  bill  was  introduced.  "In  the  hearings  before  the 
Interstate  Commerce  Commission  it  was  testified,"  said 
the  Committee  in  its  report,  ''by  well-informed  witnesses 
that  bills  of  lading  were  annually  issued  in  American 
commerce  representing  consignments  of  merchandise 
valued  at  $25,000,000,000;  that  99  per  cent  of  the  tonnage 
and  value  of  the  commodities  shipped  and  covered  by 
these  bills  of  lading  involved  interstate  and  foreign 
commerce  and  only  1  per  cent  intrastate  commerce.  On 
these  bills  of  lading  it  is  estimated  that  $5,000,000,000 
in  cash  was  advanced  annually  by  the  banks.  It  must 
follow,  therefore,  that  any  reasonable  legislation  which 
will  lead  to  the  security  of  these  bills  of  lading  in  tlio 
hands  of  their  owners  or  holders  must  be  of  immense 
value  to  the  commerce  of  the  country.  It  affects  the 
business  of  100,000,000  of  people,  extending  into  48 
States  of  the  Union  and  to  all  the  nations  of  the  world. 
In  1889,  the  United  States  Supreme  Court  in  Fried- 
lander  V.  Texas  &  Pacific  Railroad  (130  U.  S.,  416)  held; 
*A  bill  of  lading  fraudulently  issued  by  the  station  agent 


§  351]  Federal   Bill  of   Lading   Law.  619 

of  a  railroad  company,  without  receiving  the  goods 
named  in  it  for  transportation  but  in  otlier  respects  ac- 
cording to  the  customary  course  of  business,  imposes  no 
liability  upon  the  company  to  an  innocent  holder  who 
receives  it  witliout  knowledge  or  notice  of  the  fraud 
and  for  a  \'aluable  consideration.'  Under  the  agreed 
statement  of  facts  in  the  case  just  cited,  it  appears  that 
the  bill  of  lading  issued  November  6th,  1883,  was  exe- 
cuted by  one  Elaston,  the  agent  of  the  railroad  company, 
fraudulently  and  in  collusion  with  one  Lahnesteiu,  and 
without  receiving  any  of  the  cotton  called  for  by  the 
bill  of  lading,  and  without  any  expectation  of  receiving 
it  on  the  part  of  Easton.  A  conspiracy  had. been  entered 
into  between  Easton  and  Lahnestein  to  issue  these  bills 
of  lading  for  Lahnestein 's  benefit.  They  had  been  guilty 
of  similar  transactions.  The  court  held  that  under  these 
circumstances,  the  agent  was  acting  beyond  the  scope  of 
his  authority,  and  therefore  the  railroad  company  was 
not  bound.  Whether  this  decision  was  sound  or  not  it 
was  based  upon  precedents,  and  ever  since  has  been 
recognized  as  the  law  of  the  land  by  the  federal  courts 
as  well  as  by  some  of  the  State  courts.  This  ruling  has 
resulted  in  great  losses  to  the  buyers  of  merchandise 
who  have  the  right  to  depend  upon  the  bona  fides  of 
bills  of  lading,  to  bankers  and  financial  men  who  have 
bought  or  discounted  drafts  secured  by  these  bills  of 
lading,  and  to  sellers  and  buyers  of  cotton,  grain,  or 
other  merchandise  whose  transactions  are  discredited  by 
reason  of  the  frauds  which  have  been  perpetrated  by 
fraudulent  shippers  conspiring  with  freight  agents.  As 
a  result  millions  of  dollars  have  been  lost  to  commerce. 
The  pending  bill.  Section  22,  modifies  the  law  as  laid 
down  in  the  Friedlander  case,  by  declaring:  'That  if 
a  bill  of  lading  has  been  issued  by  a  carrier  or  on  his 
behalf  by  an  agent  or  employee,  the  scope  of  whose 
actual  or  apparent  authority  includes  the  issuing  of 
bills  of  lading,  the  carrier  shall  be  liable  to  (a)  the  con- 
signee named  in  a  straight  bill,  or  (b)  the  holder  of  an 
order  bill,  who  has  given  value  in  good  faith,  relying 
upon  the  description  therein  of  the  goods,  for  damages 
caused  by  the  non-receipt  by  the  carrier  of  all  or  part 


620  Duties    to    Interstate    Shippers.  [§  351 

of  the  goods  or  their  failure  to  correspond  with  the 
description  thereof  in  the  bill  at  the  time  of  its  issue.' 
The  Committee  will  not  take  the  time  to  discuss  all  of 
the  features  of  the  bill,  but  among  the  most  impoi-tant, 
they  desire  to  call  attention  to  the  following:  1.  Dupli- 
cate bills  of  lading.  2.  Altered  bills  of  lading.  3. 
Spent  bills  of  lading.  4.  Shipper's  load  and  count. 
5.  Forgeries.  The  proposed  regulations  with  regard  to 
duplicate  bills  of  lading  are  found  in  sections  4  and  5 
and  15,  which  read  as  follows:  'Sec.  4.  That  order  bills 
issued  in  a  State  for  the  transportation  of  goods  to  any- 
place in  the  United  States  on  the  continent  of  North 
America,  except  Alaska  and  Panama,  shall  not  be  issued 
in  parts  or  sets.  If  so  issued,  the  carrier  issuing  them 
shall  be  liable  for  failure  to  deliver  the  goods  described 
therein  to  any  one  who  purchases  a  part  for  value  in  good 
faith,  even  though  the  purchase  be  after  the  delivery  of 
the  goods  by  the  carrier  to  a  holder  of  one  of  the  other 
parts:  Provided,  hoivever,  that  nothing  contained  in 
this  section  shall  be  inteqireted  or  construed  to  forbid 
the  issuing  of  order  bills  in  parts  or  sets  for  such  trans- 
portation of  goods  to  Alaska,  Panama,  Porto  Eico,  the 
Philippines,  Hawaii,  or  foreign  countries,  or  to  impose 
the  liabilities  set  forth  in  this  section  for  so  doing.  Sec. 
5.  That  when  more  than  one  order  bill  is  issued  in  a 
State  for  the  same  goods  to  be  transported  to  any  place 
in  the  United  States  on  the  continent  of  North  America, 
except  Alaska  and  Panama,  the  word  'duplicate'  or  some 
other  word  or  words  indicating  that  the  document  is 
not  an  original  bill  shall  be  placed  plainly  upon  the 
face  of  every  such  bill  except  the  one  first  issued.  A 
carrier  shall  be  liable  for  the  damages  caused  by  his 
failure  so  to  do  to  any  one  who  has  purchased  the  bill 
for  value  and  good  faith  as  an  original,  even  though 
the  purchase  be  after  the  delivery  of  the  goods  by  the 
carrier  to  the  holder  of  the  original  bill:  Provided, 
however,  That  nothing  contained  in  this  section  shall  in 
such  case  for  such  transportation  of  goods  to  Alaska, 
Panama,  Porto  Rico,  the  Philippines,  Hawaii,  or  foreign 
countries  be  interpreted  or  construed  so  as  to  require 
the  placing  of  the  word  'duplicate'  thereon,  or  to  im- 


§  351]  Fedeiul   Bill   of   Ladixc   Law.  G21 

pose  the  liabilities  set  forth  in  this  section  for  failure 
so  to  do.  See.  15.  That  a  bill,  upon  the  face  of  which 
the  word  'duplicate'  or  some  other  word  or  words  indi- 
cating that  the  document  is  not  an  original  bill  is  placed, 
l)lainly  shall  im])ose  upon  the  carrier  issuing  the  same 
the  liability  of  one  who  represents  and  warrants  that 
such  bill  is  an  accurate  copy  of  an  original  hill  [)i'operly 
issued,  but  no  other  liability.'  Section  lo  jjrovides: 
'That  any  alteration,  addition,  or  erasure  in  a  bill  after 
its  issue  without  authority  from  the  carrier  issuing  the 
same  either  in  writing  or  noted  on  the  bill,  shall  be 
void,  whatever  be  the  nature  and  purpose  of  the  change, 
and  the  bill  shall  be  enforceable  according  to  its  original 
tenor.'  Many  frauds  have  been  committed  in  the  com- 
mercial world  by  using  bills  of  lading  after  the  goods 
have  been  delivered,  and  which  have  not  been  taken  up 
or  cancelled.  Frequently  they  have  been  used  for  se- 
curing credit,  although  the  goods  called  for  have  been 
delivered.  The  railroads  have  not  been  liable  because 
they  have  been  able  to  prove  the  delivery  of  the  goods. 
Sections  11  and  12  of  the  bill  remedy  these  abuses. 
They  read  as  follows:  'Sec.  11.  That  except  as  provid- 
ed in  section  29,  and  except  when  compelled  by  legal 
process,  if  a  carrier  delivers  goods  for  which  an  order 
bill  had  been  issued,  the  negotiations  of  which  would 
transfer  the  right  to  the  possession  of  the  goods,  and 
fails  to  take  uj)  and  cancel  the  bill,  such  carrier  shall 
be  liable  for  failure  to  deliver  the  goods  to  any  one 
who  for  value  and  in  good  faith  purchases  such  bill, 
whether  such  purchaser  acquired  title  to  the  bill  before 
or  after  the  delivery  of  the  goods  by  the  carrier  and 
notwithstanding  that  delivery  was  made  to  the  person 
entitled  thereto.  Sec.  12.  That  except  as  provided  in 
section  26  and  except  when  compelled  by  legal  process, 
if  a  carrier  delivers  part  of  the  goods  for  which  an  order 
bill  has  been  issued  and  fails  either — (a)  to  take  up 
statement  that  a  portion  of  the  goods  has  been  deliver- 
ed with  a  description  which  may  be  in  general  terms 
either  of  the  goods  or  packages  that  have  been  so  de- 
livered or  of  the  goods  or  packages  which  still  remain 
in  the  carrier's  possession,  he  shall  be  liable  for  failure 


62^  Duties    to    Interstate    Shippers.  [§  351 

to  deliver  all  the  goods  specified  in  the  bill  to  any  one 
who  for  value  and  in  good  faith  purchases  it,  whether 
and  cancel  the  bill,  or  (b)  to  place  plainly  upon  it  a 
such  purchaser  acquired  title  to  it  before  or  after  the 
delivery  of  any  portion  of  the  goods  by  the  carrier,  and 
notwithstanding  that  such  delivery  was  made  to  the 
person  entitled  thereto.'  Many  abuses  have  arisen  by 
carriers  marking  bills  of  lading  'shipper's  load  and 
count.'  This  of  course  aifects  their  value  for  banking 
and  credit  purposes.  These  abuses  are  sought  to  be  reme- 
died by  section  20  and  21  of  the  bill,  which  provide:  'Sec. 
20.  That  when  goods  are  loaded  by  a  carrier  such  car- 
rier shall  count  the  packages  of  goods  if  package  freight, 
and  ascertain  the  kind  and  quantity  of  bulk  freight 
and  such  carriers  shall  not,  in  such  cases,  insert  in  the 
bill  of  lading  or  in  any  notice,  receipt,  contract,  rule, 
regulation,  or  tariff,  'shipper's  weight,  load,  and  count,' 
or  other  words  of  like  purport,  indicating  that  the 
goods  were  loaded  by  the  shipper  and  the  description 
of  them  made  by  him.  If  so  inserted,  contrary  to  the 
provisions  of  this  section,  said  words  shall  be  treated 
as  null  and  void  and  as  if  not  inserted  therein.  Sec.  21, 
That  when  goods  are  loaded  by  a  shipper  at  a  place 
where  the  carrier  maintains  an  agency,  such  car- 
rier shall,  on  written  request  of  such  shipper,  and 
when  given  a  reasonable  opportunity  by  the  shipper 
so  to  do,  count  the  packages  of  goods  if  package  freight, 
and  ascertain  the  kind  and  quantity  if  bulk  freight, 
within  a  reasonable  time  after  such  written  request, 
and  such  carrier  shall  not,  in  such  cases,  insert  in  a 
bill  of  lading,  or  in  any  notice,  receipt,  contract,  rule, 
regulation,  or  tariff,  'shipper's  weight,  load,  and  count,' 
or  other  words  of  like  purport  indicating  that  the  goods 
were  loaded  by  the  shipper  and  the  description  of  them 
made  by  him.  If  so  inserted  contrary  to  the  provisions 
of  this  section,  said  words  shall  be  treated  as  null  and 
void  and  as  if  not  inserted  therein.'  While  the  laws  of 
the  several  States  penalize  the  forging  of  bills  of  lading, 
it  is  believed,  because  of  the  fact  that  approximately 
99  per  cent  of  our  commerce  is  interstate  or  foreign  in 
character,  there  should  be  some  federal  legislation  mak- 


§  351]  Federal   Bill   of   Lading   Law.  623 

ing-  tlio   forgiiio:  and   issiiin<<  of   forged   bills   of  lading 
piiiiisliable  by  fcdoral  courts.     This  is  done  by  section 
41  of  the  pending  bill,  which  is  as  follows:     'That  any 
l^erson  who,  knowingly  or  with  intent  to  defraud,  false- 
ly makes,  alters,  forges,  counterfeits,  jirints  or  photo- 
graphs any  bill  of  lading,  or  with  like  intent  utters  or 
iniblishes  as  true  and  genuine  any  such  falsely  altered, 
forged,  counterfeited,  falsely  printed  or  photographed 
bill  of  lading,  knowing  it  to  be  falsely  altered,  forged, 
counterfeited,  falsely  printed  or  photographed,  or  aids 
in    making,    altering,    forging,    count<'rf<*itiiig,    printing 
or  photograi)hing,   or   uttering  or  publishing  the   same, 
or  issues  or  aids  in  issuing  or  procuring  the  issue  of, 
or  negotiates  or  transfers  for  value  a  bill   which  con- 
tains a  false  statement  as  to  the  receipt  of  the  goods, 
or  as  to   any  other  matter,   or   who,   within   intent   to 
defraud,  violates,   or  fails  to  comply  with,   or  aids   in 
any  violation   of,   or  failure  to  comply  with   any   pro- 
visions of  this  Act   shall  be  guilty  of  a   misdemeanor, 
and,  upon  conviction,  shall  be  punished  for  each  offense 
by  imprisonment  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  $5,000,  or  both.'      It  is  not  intended  by 
this  report  to  call  special  attention  to  all   of  the  pro- 
visions of  the  bill.     They  are  self-explanatory." 


CHAPTER  XIX. 

The    Interstate    Commerce    Commission — Its    Nature, 
Functions,  Powers  and  Duties. 

Sec.  352.    Necessity  of  a  National  Commission  to  Enforce  Federal  Legis- 
lation Regulating  Railroads. 

Sec.  353.    Statutory  Provision  Creating  the  Interstate  Commerce  Com- 
mission. 

Sec.  354.    Amendments  of  1906   and   1917   Increasing  Membership   and 
Salaries  of  the  Commissioners. 

Sec.  355.    Commission  an  Administrative  Body  Exercising  Quasi  Judici- 
al  Functions 

Sec.  356.    General    Statement    of    Powers    and    Duties    of    Commission 
over  Interstate  Carriers. 

Sec.  357.    Commission  Authorized  to  Divide  its  Members  into  Divisions. 

Sec.  358.    Three  Divisions  of  Commission  Established  Pursuant  to  Fore- 
going  Amendment. 

Sec.  359.    Limitation    upon    Povi^ers    of   Commission    in    Regulating    In- 
terstate  Carriers   and    Transportation. 

Sec.  360.    Commission   Without   Authority    to    Compel    Carriers   to    Ac- 
quire and  Furnish  Special  Kind  of  Cars. 

Sec.  361.    Duty   to   Furnish   Cars   for   Interstate   Shipments   a   .ludicial 
Question  for  Courts  and  not  Administrative  in  Character. 

Sec.  362.    Maximum  Rates  and  Charges  for  Interstate  Transportation 
may  be  Prescribed  by  Commission. 

Sec.  363.    Proposed  Advances  in  Rates  may  be  Suspended  by  Commis- 
sion Pending  Investigation  of  Propriety. 

Sec.  364.    Amendment   of   1917   Prohibiting   Filing   of   Increased   Rates 
without   Approval   of   Commission. 

Sec.  365.    Rules  of  Carriers  Governing  Distribution,   Exchange,   Inter- 
change and  Return  of  Cars. 

Sec.  366.    Statute    Compelling    Carriers    to    Establish    Through    Routes 
and  .Toint  Rates  upon  Order  of  Commission.  Valid. 

Sec.  367.    Powers  of.  and  Limitations  Upon,  Commission  in  Establishing 
Through  Routes  and  .loint  Rates. 

Sec.  368.    When  Commission  may  Establish  Through  Routes  and  Max- 
imum Joint  Rates  between  Rail  and  Water  Lines. 

Sec.  369.    Jurisdiction  of  Commission  in  Connection  with  Transporta- 
tion to  Adjacent  Foreign  Countries. 

Sec.  370.    Commission  may  not  Compel  a  Carrier  to  Receive  and  Switch 
Carload  Freight  to  Industries  on  its  Terminals. 

Sec.  371.    Commission    may    Authorize    Carriers    to    Charge    Less    for 
Longer  than  for  Shorter  Distance. 

Sec.  372.    Commission  may  Authorize  Rail  Carriers  to  Continue  Owner- 
ship of  Water  Lines. 

(624) 


§  352 J  The     Commerce     Commission.  625 

Sec.  373.    Commission    may    Prescribe   the    Forms   of   all  Schedules  or 

Rates  and   Charges. 
Sec.  374.    Charges  by  Shippers  against  Carriers  for  Services  Connected 

with  Transportation   under   Control  of  Commission. 
Sec.  375.    Commission    may   Formulate    Regulations    for   the   Transpor- 
tation of  Explosives. 
Sec.  376.    Switch    Connections    may    be    Ordered    by    the    Commission, 

When. 
Sec.  377.    Forms  of  all  Accounts,  Records  and  Memoranda  of  Carriers 

Subject  to  Control  of  Commission. 
Sec.  378.    Power    of    Commission    over    Rail    Carriers    Discriminating 

against  Steamship   Lines  to  Foreign  Countries. 
Sec.  379.    Rail  Rates  Reduced  to  Meet  Water  Competition  may  not  be 

Raised  without  Permission  of  Commission. 
Sec.  380.    Physical  Connection  between  Line  of  Rail  Carriers  and  Water 

Carriers  may  be  Established  by  Commission. 
Sec.  381.    Maximum   Proportional    Rates   by   Rail   to   and    From    Ports 

may  be  Established  by  Commission.  When. 
Sec.  382.    Commission    Without    .Jurisdiction    to    Regulate    Charges    in 

Connection  with  28-TTour  Livestock  Law. 
Sec.  .183.    Commission   Required  to  Make  Annual   Reports  to  Congress 
Sec.  384.    Rules  and  Regulations  for  Inspection  of  Locomotive  Boilers 

Controlled  by  Commission. 
Sec.  385.    Carriers  Required  to  Make  Monthly  Reports  of  all  Accidents 

to  Commission. 
Sec.  386.    Commission  May  Require  Annual  Reports  from  all  Common 

Carriers  Subject  to  Statute. 
Sec.  387.    Power   of   Commission    over    Safety   Appliances   on    Railroad 

Cars  and  Engines. 
Sec.  388.    Commission    Empowered    to    Investigate    Railroad    Accidents 

and  to  Make  Reports. 

§  352.  Necessity  of  a  National  Commission  to  En- 
force Federal  Legislation  Regulating  Railroads.  The 
creation  of  a  national  eoiniiiission  or  o\\\ov  speeial  trib- 
unal to  be  charged  with  the  duty  of  carrying  out  and 
enforcing  national  legislation  for  the  regulation  of  inter- 
state transportation  and  carriers  was  recognized  and 
recommended  by  the  Cnlloni  Committee  in  its  report  to 
Congress  accompanying  the  proposed  bill  to  regulate 
commerce.  "The  commission  proposed  in  the  bill  here- 
with reported,"  said  the  Committee,^  "is  not  designed 
to  be  a  substitute  for  s]iecitic  regulation,  but  it  is  de- 

1.    Report  of  the  Committee  on      Interstate   Commerce.   Senate   Re- 
port 1st  Session,  49th  Congress. 

1    Control    Carriers    Kl 


626  Duties   to   Interstate   Shippers.  ["§  352 

signed  and  believed  to  be  a  valuable  auxiliary  agency 
in  facilitating  and  securing  the  enforcement  of  what- 
ever regulations  may  be  prescribed  by  Congress.  *  *  * 
In  the  light  of  all  the  evidence  and  the  facts  before  it, 
the  committee  has  become  satisfied  that  no  statutory 
regulations  which  may  be  enacted  can  be  made  fully 
effective  without  providing  adequate  and  suitable  ma- 
chinery for  carrying  them  into  execution.  'What  is  every- 
body's business  is  nobody's  business,'  and  the  conclu- 
sion seems  irresistible  that  specific  enactments  must 
inevitably  fail  to  remedy  the  evils  they  are  designed  to 
cure  unless  an  executive  board  be  organized  for  the 
special  purpose  of  securing  their  enforcement.  Such 
enactments  cannot  possibly  be  self-enforcing,  and  when- 
ever attempts  have  been  made  to  control  or  regulate 
commercial  transactions  it  has  been  found  necessary  to 
do  so  through  a  special  instrumentality.  Whatever  pol- 
icy of  regulation  may  be  adopted,  whether  it  be  the  most 
conservative  or  the  most  radical  that  can  be  suggested, 
and  from  whatever  point  of  view  the  question  of  regu- 
lation may  be  regarded,  we  are  convinced  that  the  pro- 
posed commission  will  prove  equally  essential  and  valu- 
able in  carrying  into  effect  such  remedial  legislation  as 
may  be  enacted  for  the  protection  of  the  people  against 
the  grievances  of  which  they  complain." 

§  353.  Statutory  Provision  Creating  the  Interstate 
Commerce  Commission.  Section  11  of  the  Interstate 
Commerce  Act  as  originally  enacted  provides  for  the 
establishment  of  a  commission  to  be  known  as  the  Inter- 
state Commerce  Commission  and  to  be  composed  of  five 
commissioners  appointed  by  the  President  by  and  with 
the  advice  of  the  Senate.  This  section  further  provided : 
"The  Commissioners  first  appointed  under  this  Act 
shall  continue  in  office  for  the  term  of  two,  three,  four, 
five,  and  six  years,  respectively,  from  the  first  day  of 
January,  Anno  Domini  eighteen  hundred  and  eighty- 
seven,  the  term  of  each  to  be  designated  by  the  Presi- 
dent; but  their  successors  shall  be  appointed  for  terms 
of  six  years,  except  that  any  person  chosen  to  fill  a 
vacancy  shall  be  appointed  only  for  the  unexpired  time 
of  the  Commissioner  whom  he  shall  succeed.    Any  Com- 


§  354]  The     Commekck     C-ommission,  G27 

missionor  may  be  removed  by  the  President  for  inefficien- 
cy, neglect  of  duty,  or  malfeasance  in  office.  Not  more 
than  three  of  the  Commissioners  shall  he  appointed 
from  the  same  political  party.  No  ])erson  in  the  employ 
of  or  holding  any  official  relation  to  any  common  carrier 
subject  to  the  provisions  of  this  Act,  or  owning  stock 
or  bonds  thereof,  or  who  is  in  any  manner  peciiiii;iril\ 
interested  therein,  shall  enter  u])on  the  duties  of  or  iioM 
such  office.  Said  Commissioners  shall  not  engage  in  any 
other  business,  vocation,  or  employment.  No  vacancy 
in  the  Commission  shall  impair  the  right  of  the  remain- 
ing Commissioners  to  exercise  all  the  powers  of  the 
Commission." 

§  354.  Amendments  of  1906  and  1917  Increasing- 
Membership  and  Salaries  of  the  Commissioners.  By  an 
act  of  June  2i),  190G,  being  now  Section  24  of  the  Inter- 
state Commerce  Act,  the  number  of  the  commissioners 
composing  the  Interstate  Commerce  Commission  was 
increased  from  five  to  seven  with  terms  of  seven  years 
and  each  to  receive  a  salary  of  $10,000  annually.  This 
amendment  further  provides:  "The  qualifications  of  the 
Commissioners  and  the  manner  of  the  payment  of  their 
salaries  shall  be  as  already  provided  by  law.  Such  en- 
largement of  the  Commission  shall  be  accomplished 
through  appointment  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  of  two  additional 
Interstate  Commerce  Commissioners,  one  for  a  term  ex- 
piring December  thirty-first,  nineteen  hundred  and 
eleven,  one  for  a  term  expiring  December  thirty-first, 
nineteen  hundred  and  twelve.  The  terms  of  the  present 
Commissioners,  or  of  any  successor  appointed  to  fill  a 
vacancy  caused  by  the  death  or  resignation  of  any  of 
the  present  Commissioners,  shall  expire  as  heretofore 
provided  by  law.  Their  successors  and  the  successors 
of  the  additional  Commissioners  herein  ])r()vided  for 
shall  be  appointed  for  the  full  terms  of  seven  years, 
except  that  any  person  appointed  to  fill  a  vacancy  shall 
be  appointed  only  for  the  unexpired  term  of  the  Com- 
missioner whom  he  shall  succeed.  Not  more  than  four 
Commissioners  shall  be  appointed  from  the  same  politi- 


628  Duties    to    Interstate    Shippers.  [^'  354 

cal  party."  The  Commission  was  further  enlarged  in 
1917  by  an  amendment  providing  that  it  shall  consist 
of  nine  members.^ 

§  355.  Commission  an  Administrative  Body  Exer- 
cising Quasi  Judicial  Functions.  The  Interstate  Com- 
merce Commission  is  a  body  corporate  with  power  as 
such  to  sue  and  be  sued  in  the  courts.'  It  is  an  expert 
tribunal  with  relation  to  transportation  rates  and  charg- 
es;* but  it  is  not  a  court.'  The  Commission,  although 
clothed  with  quasi  judicial  functions,  is  an  administra- 
tive body.*"  Proceedings  before  the  Commission  are  not 
judicial;  but  quasi  judicial  and  administrative  in  their 
nature.'  The  nature  and  function  of  the  Commission 
were  well  summarized  by  Judge  Jackson  in  a  pioneer 
and  leading  opinion,  as  follows:  "But  does  the  inter- 
state commerce  law  undertake  either  to  create  an  'in- 
ferior court'  or  to  invest  the  commission  appointed 
thereunder  with  judicial  functions'?  We  think  not.  While 
the  commission  possesses  and  exercises  certain  powers 
and  functions  resembling  those  conferred  upon  and  ex- 
ercised by  regular  courts,  it  is  wanting  in  several  essen- 
tial constituents  of  a  court.  Its  action  or  conclusion 
upon  matters  of  complaint  brought  before  it  for  investi- 
gation, and  which  the  act  designates  as  the  'recom- 
mendation,' 'report,'  'order,'  or  'requirement'  of  the 
board  is  neither  final  nor  conclusive;  nor  is  the  com- 

2.  Act  of  Aug.  9,  1917.  Appen-  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co., 
dix  A,  infra.  64   Fed.  981. 

3.  Texas  &  P.  R-  Co.  v.  Inter-  6.    United  States  v.  Reading  Co., 
■  state   Commerce  Commission,   162       183  Fed.  427;    Western  New  York 

U.  S.   197,  40  L.  Ed.  940,  16  Sup.  &  p.  R.  Co.  v.  Penn  Refining  Co.  of 

Ct.     666;       Interstate     Commerce  oil    City,    Pennsylvania,    70    C.    C. 

Commission  v.  Baltimore  &  0.  R.  a.    23,    137    Fed.    343;      Interstate 

Co.,  145  U.  S.  263,  36  L.  Ed.  699,  Commerce  Commission  v.  Cincin- 

12     Sup.     Ct.     844.  jj^jj        p^        Q        ^      rp        p        fjy        (.Q^      rjQ 

4.  Interstate  Commerce  Com-  ^^^  ^^3.  ^^^^^^^^^^^  Commerce 
mission  V.  Louisville  &  N.  R.  Co.,  ^^^^.^^.^„  ^  Cincinnati,  N.  O. 
118  Fed.  613. 

5.  Interstate    Commerce    Com-  '-^   '^-  •^^    ^y 

•    ■  ■D^i^cr.r.    it^d  TT    <5    447  7.      Interstate   Commerce    Com- 

mission V.  Brimson,  lo4  u.  o.  *4<, 

38  L.  Ed.  1047,  14  Sup.  Ct.  1125;       mission  v.  Louisville  &  N.  R.  Co.. 
Interstate  Commerce  Commission      73  Fed.  409. 


§  355]  The     Commerck    Commission,  629 

mission  invested  witli  any  autliority  to  enforce  its  deci- 
sion or  award.  Without  reviewing  in  detail  the  pro- 
visions of  tlie  law,  we  are  clearly  of  the  opinion  that  the 
commission  is  invested  with  only  administrative  i)owers 
of  supervision  and  investigation,  which  fall  far  short  of 
making  the  board  a  court,  or  its  action  judicial,  in  tlie 
l)roper  sense  of  the  term.  The  commission  hears,  investi- 
gates, and  re])orts  u])on  complaints  made  before  it,  in- 
volving alleged  violations  of  or  omission  of  duty  under 
the  act;  but  subsequent  judicial  proceedings  are  con- 
temi)laled  and  i^rovided  for,  as  the  remedy  for  the  en- 
forcement, either  by  itself  or  the  party  interested,  of 
its  order  or  report  in  all  cases  where  the  party  com- 
])lained  of  or  against  whom  its  decision  is  rendered  does 
not  yield  voluntary  obedience  thereto.  By  the  four- 
teenth and  sixteenth  sections  of  the  act  it  is  provided 
that  the  report  or  findings  made  by  the  commission 
'should  thereafter,  in  all  judicial  proceedings,  be  deemed 
prima  facie  evidence  as  to  each  and  every  fact  found.' 
The  commission  is  charged  with  the  duty  of  investigat- 
ing and  reporting  upon  complaints,  and  the  facts  found 
or  reported  by  it  are  only  given  the  force  and  weight 
of  prima  facie  evidence  in  all  such  judicial  proceedings 
as  may  thereafter  be  required  or  had  for  the  enforce- 
ment of  its  recommendation  or  order.  The  functions 
of  the  commission  are  those  of  referees  or  special  com- 
missioners, a]»])ointed  to  make  preliminary  investiga- 
tion of  and  report  upon  matters  for  subsequent  judicial 
examination  and  detennination.  In  respect  to  inter- 
state commerce  matters  covered  b}'  the  law,  the  com- 
mission may  be  regarded  as  the  general  referee  of  each 
and  every  circuit  court  of  the  United  States,  upon  which 
the  jurisdiction  is  conferred  of  enforcing  the  rights, 
duties,  and  obligations  recognized  and  imposed  by  the 
act.  It  is  neither  a  federal  court  under  the  constitu- 
tion, nor  does  it  exercise  judicial  powers,  nor  do  its 
conclusions  possess  the  efficacy  of  judicial  proceedings. 
This  federal  commission  has  assigned  to  it  the  duties, 
and  performs  for  the  United  States,  in  respect  to  that 
interstate  commerce  committed  by  the  constitution  to 
the  exclusive  care  and  jurisdiction  of  congress,  the  same 


630  Duties   to   Interstate   Shippers.  [§  355 

functions  which  state  commissioners  exercise  in  respect 
to  local  or  purely  internal  commerce,  over  which  the 
states  appointing  them  have  exclusive  control.  Their 
validity  in  their  respective  spheres  of  operation  stands 
upon  the  same  footing.  The  validity  of  state  commis- 
sioners invested  with  powers  as  ample  and  large  as 
those  conferred  u]Km  the  federal  commissioners,  has  not 
been  successfully  questioned,  when  limited  to  that  local 
or  internal  commerce  over  which  the  states  have  exclu- 
sive jurisdiction;  and  no  valid  reason  is  seen  for  doubt- 
ing or  questioning  the  authority  of  congress,  under  its 
sovereign  and  exclusive  power  to  regulate  commerce 
among  the.  several  states,  to  create  like  commissions  for 
the  purpose  of  supervising,  investigating,  and  re]wrt- 
ing  upon  matters  or  complaints  connected  with  or  grow- 
ing out  of  interstate  commerce.  What  one  sovereign 
may  do  in  respect  to  matters  within  its  exclusive  con- 
trol, the  other  may  certainly  do  in  respect  to  matters 
over  which  it  has  exclusive  authority.'"* 

§  356.  General  Statement  of  Powers  and  Duties  of 
Commission  over  Interstate  Carriers.  The  statute  au- 
thorizes and  requires  the  Commission  to  execute  and 
enforce  the  provisions  of  the  Interstate  Commerce  Act. 
It  may  inquire  into  the  management  of  the  business  of 
all  the  common  carriers  subject  to  the  statute  and  may 
obtain  from  theni  full  and  complete  information  neces- 
sary to  enable  it  to  perform  its  duties  and  to  carry  out 
the  business  for  which  it  was  created.  Under  the  stat- 
ute it  is  required  to  keep  itself  informed  as  to  the  man- 
ner and  method  in  which  the  business  of  all  common 
carriers  is  conducted.  The  Commission  may  also  direct 
the  United  States  District  attorneys  to  institute  and 
prosecute,  under  the  direction  of  the  attorney  general, 
all  necessary  proceedings  for  the  enforcement  of  the 
provisions  of  the  Act,  and  for  the  punishment  of  all 
violations  thereof.® 

8.     Kentucky  &  I.  Bridge  Co.  v.  9.     Section  12  of  the  Act  to  Reg- 

Louisville    &    N.    R.    Co.,    37    Fed.       uiale   Coniaieice,  Appendix  A,  in- 
567.  /'■«• 


§  357]  The     Commerce    Commission.  631 

§  357.    Commission  Authorized  to  Divide  its  Mem- 
bers into  Divisions,    liy  an  auieiidinciil  pa.s.'^ed  in  11*1 7/" 
the  Interstate  Commerce  Commission  was  authorized  to 
divide  tlie  memboi's  tliereof  into  as  many  divisions  as 
it  may  deem   necessary,   wliich   may  l)e   changed   from 
time  to  time.     The  amendatory   statute   is  as  follows: 
"The  Commission  is  hereby  authorized  by  its  order  to 
divide  the  members  thereof  into  as  many  divisions  as 
it  may  deem  necessary,   which  may  be   changed   from 
time  to  time.     Such  divisions  shall  be  denominated,  re- 
spectively, division  one,  division  two,  and  so  forth.  Any 
commissioner  may  be  assigned  to  and  may  serve  upon 
sucli  divisidii  or  dixisioiis  as  the  commission  may  direct, 
and  the  senior  in  service  of  the  commissioners  consti- 
tuting any  of  said  divisions  shall  act  as  chairman  there- 
of.    In  case  of  vacancy  in  any  division,  or  of  absence 
or  inability  to  serve  thereon  of  any  commissioner  there- 
to  assigned,  the  chairman   of  the   commission,   or   any 
commissioner  designated  by  him  for  that  purpose,  may 
temporarily  serve  on  said  division  until  the  commission 
shall  otherwise  order.     The  commission  may  by  order 
direct  that  any  of  its  work,  business,  or  functions  aris- 
ing under  this  Act,  or  under  any  Act  amendatory  there- 
of, or  supplemental  thereto,  or  under  any  amendment 
which  may  be  made  to  any  of  said  Acts,  or  under  any 
other  Act  or  joint  resolution  which   has  been   or  mav 
hereafter   be    approved,    or   in    respect    of    any   matter 
which  has  been  or  may  be  referred  to  the  commission 
by  Congress  or  1)y  either  branch  thereof,  be  assigned  or 
referred  to  any  of  said  divisions  for  action  thereon,  and 
may  by  order  at  any  time  amend,  modify,  supplement, 
or  rescind   any   snch   dii'cction.     All    such   orders   shall 
take  effect   forthwith  and   remain   in  effect   until   other- 
wise ordered  by   the  commission.     In   conformity   with 
and  subject  to  the  order  or  orders  of  the  commission  in 
the   premises,  each   division   so   constituted    shall    hav(^ 
power  and  authority  by  a  majority  tliereof  to  hear  and 
determine,  order,  certify,  report,  or  otherwise  act  as  to 

10.     Ad  of  yVugust  0,   1917,   Ap-      peiulix  A,  infra. 


6o'2  Duties   to    Intei^state    Shippees.  [§  357 

any  of  said  work,  business,  or  functions  so  assigned  or 
referred  to  it  for  action  by  the  commission,  and  in  re- 
spect thereof  the  division  shall  have  all  the  jurisdiction 
and  powers  now  or  then  conferred  by  law  upon  the 
commission,  and  be  subject  to  the  same  duties  and  obli- 
gations. Any  order,  decision,  or  report  made  or  other 
action  taken  by  any  of  said  divisions  in  respect  of  any 
matters  so  assigned  or  referred  to  it  shall  have  the 
same  force  and  effect,  and  may  be  made,  evidenced,  and 
enforced  in  the  same  manner  as  if  made,  or  taken  by 
the  commission,  subject  to  rehearing  by  the  commission, 
as  provided  in  section  sixteen  hereof  for  rehearing 
cases  decided  by  the  commission.  The  secretary  and 
seal  of  the  commission  shall  be  the  secretary  and  seal 
of  each  division  thereof.  In  all  proceedings  before  any 
such  divisions  relating  to  the  reasonableness  of  rates 
or  to  alleged  discriminations  not  less  than  three  mem- 
bers shall  participate  in  the  consideration  and  decision; 
and  in  all  proceedings  relating  to  the  valuation  of  rail- 
way property  under  the  Act  entitled  'An  Act  to  amend 
an  Act  entitled  'An  Act  to  regulate  commerce,'  ap- 
proved February  fourth,  eighteen  hundred  and  eighty- 
seven,  and  all  Acts  amendatory  thereof,  by  providing  for 
a  valuation  of  the  several  classes  of  property  of  car- 
riers subject  thereto  and  securing  information  con- 
cerning their  stocks,  bonds,  and  other  securities,'  ap- 
proved March  first,  nineteen  hundred  and  thirteen,  not 
less  than  five  members  shall  participate  in  the  consider- 
ation and  decision.  The  salary  of  the  secretary  of  the 
commission  shall  be  $5,000  per  annum.  Nothing  in  this 
section  contained,  or  done  pursuant  thereto,  shall  be 
deemed  to  divest  the  commission  of  any  of  its  powers." 

§  358.  Three  Divisions  of  Commission  Established 
Pursuant  to  Foregoing  Amendment.  Following  the  en- 
actment of  the  foregoing  amendment  authorizing  the 
Commission  to  divide  itself  into  divisions,  the  Inter- 
state Commerce  Commission,  on  October  17,  1917, 
reconstituted  itself  into  three  divisions.  The  order 
creating  the  three  divisions  with  the  work  assigned  to 
each,   is  as  follows:      "It  is  ordered,   That,  except  as 


"^  358]  The    Commerce    Commission.  633 

otherwise  provided  by  tlie  Commission,  for  the  purposes 
of  this  amendment  to  the  aet  to  re<^ulate  commerce  the 
Commission  be  and  hereby  is  divided  into  three  divi- 
sions ninnl)ered,  respectively,  Division  1,  Division  2, 
and  Division  3.  It  is  furtlier  ordered,  That  Commission- 
ers McChord,  Meyer  and  Aitchison  shall  constitute  Divi- 
sion 1;  tliat  Commissioners  Clark,  Daniels,  and  Woolley 
shall  constitute  Division  2;  and  that  Commissioners 
Harlan,  Hall  and  Anderson  shall  constitute  Division  3. 
Each  division  so  constituted  shall  have  power  and  au- 
thority by  a  majority  tliereof  to  hear,  determine,  order, 
certify,  report,  or  otherwise  act  as  to  any  of  the  work, 
business  or  functions  assigned  or  referred  to  it.  Each 
or  any  of  such  divisions,  with  regard  to  any  case  or 
matter  assigned  to  it,  or  any  question  brought  to  it  under 
this  delegation  of  duty  and  authority,  may  call  upon 
the  whole  Commission  for  advice  and  counsel,  or  for 
consideration  of  the  case  or  question  by  an  additional 
commissioner  or  commissioners  assigned  thereto  by  the 
whole  Commission;  and  the  Commission  may  bring  be- 
fore it  as  such  any  case  or  question  so  allotted  or  as- 
signed. It  is  further  ordered.  That  to  Division  1  be  as- 
signed all  cases  set  for  argument  beginning  October  24, 
to  and  including  Oct.  31,  1917,  and  that  in  addition 
thereto  Division  1  be  charged  with  the  conduct  of  the 
work  of  the  Bureau  of  Valuation  other  than  consider- 
ing and  deciding  the  proceedings  relating  to  the  valua- 
tion of  carriers'  property;  that  to  Division  2  be  assigned 
all  cases  set  for  argument  beginning  November  1  to 
and  including  Nov.  30,  1917,  and  in  addition  thereto 
Division  2  be  charged  with  the  disposition  of  applica- 
tions and  requests  for  suspension  under  the  fifteenth 
section;  of  applications  under  the  fourth  and  sixth  sec- 
tions; of  cases  on  the  special  docket;  of  the  transporta- 
tion of  explosives  and  dangerous  articles;  and  of  tariffs 
carrying  released  rates;  that  to  Division  3  be  assigned 
all  cases  set  for  argument  beginning  December  1  to  and 
including  Dec.  31,  1917,  and  in  addition  thereto  Divi- 
sion 3  be  charged  with  the  disposition  of  all  Board  of 
Review  cases  which  have  been  submitted  and  those  not 
hereafter  orallv  argued  before  the  Commission  or  auv 


6o-l-  Duties   to   Intebstate   Shippers.  [§  358 

division  thereof.  And  it  is  fiirtlier  ordered  (1)  That 
all  eases  set  for  argument  and  all  eases  submitted,  other 
than  Board  of  Keview  cases,  in  any  one  month  after 
Jan.  1,  1918,  he  assigned  in  monthly  rotation  to  the 
respective  divisions  in  the  order  given  above;  (2)  that 
matters  arising  in  connection  with  assigned  cases  shall 
be  dis]>osed  of  by  the  division  to  which  snch  cases  have 
been  assigned;  (3)  that  all  procedural  questions  re- 
quiring Commission  action  arising  in  connection  with 
unassigned  cases  may  be  disposed  of  by  any  of  the 
divisions;  (4)  that  miscellaneous  administrative  mat- 
ters requiring  Commission  action,  not  otherwise  pro- 
vided for,  may  be  disposed  of  by  any  division;  (5)  that 
the  foregoing  assignment  shall  not  include  the  consider- 
ation and  disposition  of  valuation  cases;  and  (6)  that 
each  division  may  determine  the  time  and  place  for  its 
hearings  and  conferences  and  determine  its  order  of 
business." 

§  359.     Limitation  upon  Powers  of  Commission  in 
Regulating  Interstate  Carriers  and  Transportation.     A 

marked  distinction  exists  between  the  powers  of  Con- 
gress and  the  Interstate  Commerce  Commission  in  regu- 
lating interstate  carriers  and  transportation.  Congress 
may  exercise  its  authority  without  limit  and  its  power 
is  full  and  complete,  subject  only  to  the  limitations  of 
the  commerce  clause;  but  the  Interstate  Commerce 
Commission  can  only  exercise  such  power  and  authority 
as  is  granted  to  it  by  statutory  enactments.  When  it 
attempts  to  regulate  interstate  commerce  and  the  agvjn- 
cies  and  instrumentalities  thereof,  it  must  find  a  specific 
delegation  of  authority  from  Congress  in  a  statute  for 
the  power  exercised.  In  making  its  orders  and  deci- 
sions under  the  Act  to  Regulate  Commerce,  the  Com- 
mission must  place  its  finger  upon  the  statute  which 
gives  it  authority.  It  can  exercise  no  functions  except 
such  as  are  expressly  conferred  upon  it.^^ 

11.     Interstate  Commerce  Com-      P.  Ry.  Co.,  167  U.  S.  479,  42  L.  Ed. 
mission  v.  Cincinnati,  N.  0.  &  T.      243,  17  Sup.  Ct.  896. 


§  360]  The     Commerce    Commission.  685 

§  360.  Commission  Without  Authority  to  Compel 
Carriers  to  Acquire  and  Furnish  Special  Kind  of  Cars. 
The  lutorHtate  Coninioree  Commission  has  tlie  power 
to  regulate  the  distrihution  of  cars  which  the  carrier 
possesses  in  such  a  manner  as  to  prevent  undue  dis- 
crimination among  shippers  in  times  of  shortage.'-  But 
althougli  the  statute  provides  tliat  the  term  "transpor- 
tation" includes  cars  and  other  vehicles  instrumental- 
ities of  carriage,  and  compels  carriers  subject  to  the 
statute,  to  provide  such  transi)ortation  upon  a  reason- 
able recjuest  therefor,  the  Interstate  Commerce  Com- 
mission has  no  authority  or  jurisdiction  to  compel  a 
carrier  to  acquire  and  provide  cars  of  a  special  type. 
Neither  does  the  statute  clothe  the  Commission  with 
the  authority  to  determine  what  kind  of  cars  should  be 
used  for  the  shipment  of  commodities."  In  the  case  of 
Pennsylvania  Paraffin  Works  v.  Pennsylvania  R.  Co.,'^ 
the  Interstate  Commerce  Commission  upon  the  complaint 
of  an  oil  company,  ordered  a  common  carrier  to  pro- 
vide and  furnish,  upon  reasonable  request,  and  notice, 
at  complainant's  refineries,  tank  cars  in  sufficient  uum- 

12.    Pennsylvania  R.  Co.  V.  Clark  ley,   198   Fed.  991;     Majestic   Coal 

Bros.  Coal  Min.  Co.,  238  U.  S.  456,  &  Coke  Co.  v.  Illinois  Cent.  R.  Co., 

59  L.  Ed.  1406,  35  Sup.  Ct.  896;  II-  162  Fed.   810;     Logan  Coal  Co.  v. 

linois    Cent.    R.    Co.    v.    Mulberry  Pennsylvania  R.  Co.,  154  Fed.  497; 

Coal  Co.,  238  U.  S.  275,  59  L.  Ed.  United    States    ex    rel.    Kingwood 

1306,  35  Sup.  Ct.  760;    Pennsylva-  Coal  Co.  v.  West  Virginia  North 

nia  R.   Co.   v.   Puritan   Coal   Min  em  R.  Co..  125  Fed.  252:    United 

Co.,  237  U.  S.  121.  59  L.  Ed.  867,  35  States  ex  rel.  Coffman  v.  Norfolk 

Sup.  Ct.  484;    Morrisdale  Coal  Co.  &  W.  Ry.  Co..  109  Fed.  831;    Rail- 

V.  Pennsylvania  R.  Co.,  230  U.  S.  road  Commission  of  Ohio  v.  Hock- 

304,    57   L.   Ed.    1494,   33    Sup.   Ct.  ing  Valley  Ry.  Co.,  12  I.  C.  C.  398; 

938;     Interstate    Commerce    Com-  Riddle,  Dean  &  Co.  v.  Pittsburgh 

mission    v.    Illinois    Cent.    R.    Co.,  &  L.  E.  R.  Co..  1  I.  C    C.  371,  1  I. 

215    U.   S.    452,    54   L.   Ed.   280,   30  c    R    688 

Sup.   Ct.   155;     Baltimore  &  O.  R.  ^^'     ^.^j^^^    g^^^^^    ^,     p^^^^^j. 

Co.   V.   United   States  ex    rel.   Pit- 


vania  R.  Co.,  242  U.  S.  208.  61  L. 
Ed.  251,  37  Sup.  Ct.  95. 


cairn  Coal  Co..  215  U.  S.  481,  54 
L.  Ed.  292,  30  Sup.  Ct.  164;  Inter- 
state   Commerce    Commission    v  ^^-     ^^  ^-  ^-  C-  1^9.     See  also  a 

Chicago  &  A.  R.  Co..  215  U.  S.  479,  similar   order,    Vulcan    Coal    Min. 

54   L.    Ed.    291.   ."^O   Sup.   Ct.    163;  <"o.  v.  Illinois  Cent.  R.  Co..  33  I. 

Montana,  W.  &  S.  R.  Co.  v.  Mor-  C.  C.  52. 


636  Duties   to-  Interstate   Shippers.  [§  360 

bers  to  transport  the  complainant's  normal  shipments 
in  interstate  commerce.  Tlie  carrier  resisted  the  order 
on  the  ground  that  the  Commission  had  no  authority 
to  reqnire  it  to  increase  its  tank  car  equipment.  An 
injunction  was  granted  by  the  District  Court  suspend- 
ing the  order  of  the  Commission.^^  Upon  writ  of  error, 
the  Supreme  Court  held  that  the  Commission  did  not 
have  such  power  as  was  attempted  to  be  exercised. 
''The  Act  as  it  was  enacted  in  1887,"  said  the  Court,'" 
''defined  the  term  'railroad'  and  the  term  'transporta- 
tion,' the  latter  as  follows:  And  the  term  'transporta- 
tion,' shall  include  all  instrumentalities  of  shipment  or 
carriage.'  The  definition  was  very  comprehensive,  and 
needed  not  the  mobilization  of  its  denotation;  but  this 
subsequently  was  attempted.  Words,  indeed,  were  mul- 
tiplied— was  meaning  changed!  In  1906  the  term  'trans- 
)iortation'  was  defined  to  'include  cars  and  other  vehicles 
and  all  instrumentalities  and  facilities  of  shipment  or 
carriage  .  .  .  '  The  words  are  not  much  less  general 
than  the  words  of  the  Act  of  1887.  There  is  no  ad- 
vance made  by  them  or  enlargement  of  meaning.  There 
was  simply  a  useless  tautology.  But  granting  it  was  not 
and  that  Congress  deemed  a  special  declaration  of  things 
to  be  necessary,  such  declaration  did  not  alter  the  re- 
lation of  the  companies  to  them.  The  duty  which  at- 
tached to  'instrumentalities'  of  the  Act  of  1887  attach- 
ed to  the  things  covered  by  ts  comprehensive  general- 
ity,— to  the  things  declared  in  the  amendment  of  1906; 
that  is,  to  'cars,'  'vehicles,'  'facilities.'  And  this  duty 
under  the  Act  of  1887,  we  have  seen,  had,  in  the  opin- 
ion of  the  Commission,  the  sanction  only  of  the  common 
law.  Under  the  amendment  the  most  that  can  be  said 
is  that  the  duty  is  particularized.  Its  sanction  is  not 
enlarged.  But  other  words  occur  which,  it  is  contended, 
have  such  effect.  These  words  are:  'And  it  shall  be 
the  duty  of  every  carrier  ...  to  provide  and  fur- 
nish such  transportation  upon  reasonable  request  there- 
is.  Pennsylvania  R.  Co.  v.  16.  United  States  v.  Pennsyl- 
Unlted  States,  227  Fed.  911.                   vania  R.  Co.,  242  U.  S.  208,  61  L. 

Ed.  251,  37  Sup.  Ct.  95. 


§  361 J  The     Commejice    Commission.  637 

for  .  .  .'  'I'liis,  liowever,  is  but  the  expression  of 
a  necessary  inii)lication.  It  was  useless  to  declare  that 
whatever  a  carrier  must  do,  he  must  do  'upon  reason- 
able request.'  The  duty  having  been  imposed,  it  neces- 
sarily could  be  demanded.  But  the  expression  of  the 
right,  if  it  needed  expression,  adds  nothing  of  indication 
to  the  previous  words  of  the  tribunal  by  which  the 
demand  was  to  be  enforced.  But  it  is  said  the  duty  hav- 
ing explicit  declaration,  the  power  to  enfore  it  was 
found  in  Section  12  as  amended  March  2,  1899,  as  fol- 
lows: 'And  the  Commission  is  hereby  authorized  and 
required  to  execute  and  enforce  the  provisions  of  this 
act.'  (25  Stat,  at  L.  855,  858,  chap.  382,  Comp  Stat. 
1913,  Sections  8569,  8576.)  But  this  casts  us  back  to 
our  general  considerations,  to  which  we  may  only  add 
that  there  was  no  (piestion  of  the  duty  of  carriers 
either  under  the  Act  of  1887  or  under  tlie  amendment  of 
1906.  It  was  their  duty  under  both  to  furnish  the  in- 
strumentalities of  transportation.  The  question  is 
whether,  under  the  latter,  as  under  the  former,  jurisdic- 
tion to  enforce  the  duty  was  at  common  law  in  the 
courts,  or  under  the  statute  and  in  the  Commission;  and 
we  have  seen  that  it  was  the  view  of  the  Commission 
that  the  remedy  was  in  the  courts,  and  that  the  amend- 
ment of  1906  was  not  intended  to  and  did  not  change 
the  remedy.  In  other  words,  that  Congress  in  effect 
accepted  the  explanation  of  the  Commission  and  ap- 
proved its  decisions.  We  repeat,  the  amendment  of  1906 
was  drawn  by  and  recommended  by  the  Commission, 
and  it  may  be  assumed  was  not  intended  to  have  nor 
given  larger  import  in  the  law  than  it  had  in  the  rec- 
ommendation. United  States  v.  Louisville  &  N.  R.  Co., 
236  U.  S.  318,  333,  et  seq.,  59  L.  "Ed.  598,  35  Sup.  Ct. 
Rep.  363." 

§  361.  Duty  to  Furnish  Cars  for  Interstate  Ship- 
ments a  Judicial  Question  for  Courts  and  not  Adminis- 
trative in  Character.  As  a  result  of  the  decision  of 
the  Supreme  Court  in  United  States  v.  Pennsylvania  R. 
Co.,  supra,  holding  that  the  Commission,  in  the  absence 
of   unlawful    discrimination   had   no    power   under    the 


638  Duties   to   Inteestate   Shippers.  [§  361 

Interstate  Commerce  Act  to  compel  a  carrier  to  pro- 
vide and  furnish  ears  upon  reasonable  request  therefor, 
the  opinion  of  the  minority  of  the  commissioners  in 
Vulcan  Coal  and  Mining  Co.  v.  Illinois  Cent.  R.  Co,'' 
properly  states  the  law  as  to  the  authority  of  the  Com- 
mission. While  the  duty  to  furnish  cars  upon  reasonable 
request  is  required  by  the  Act,  this  obligation  is  merely 
declaratory  of  the  common  law  duties  of  a  carrier." 
The  Interstate  Commerce  Commission  is  primarily  and 
essentialh^  an  administrative  body  exercising  powers 
which  are  legislative  in  their  nature,  and  which  are 
delegated  to  it  by  Congress.  In  the  original  act,  as 
well  as  in  the  amendments,  Congress  refrained  from 
conferring  upon  the  Commission  any  jurisdiction  or 
power  which  properly  belongs  to  the  judiciary  branch 
of  the  government.  The  question  of  requiring  a  carrier 
to  provide  itself  with  additional  facilities  or  respond  in 
damages  for  failure  so  to  do,  is  essentially  a  judicial 
question  for  the  courts  and  not  a  delegated  legislative 
power  in  the  Commission.'^ 

§  362.  Maximum  Rates  and  Charges  for  Interstate 
Transportation  may  be  Prescribed  by  Commission.  When- 
ever the  Interstate  Commerce  Commission  is  of  the  opin- 
ion that  any  individual  or  joint  rates  or  charges  of  any 
kind  demanded  or  collected  by  any  common  carrier  sub- 
ject to  the  Interstate  Commerce  Act  for  the  transporta- 
tion of  persons  or  property  or  for  the  transmission  of 
messages  by  telegraph  or  telephone,  as  detined  in  the 
first  section  of  the  Act,  or  that  any  individual  or  joint 
classifications,  regulations  or  practices  of  any  kind  of 
such  carrier,  are  unjust  or  unreasonable  or  .unjustly 
discriminatory,  or  unduly  preferential  or  prejudicial,  or 
otherwise  in  violation  of  any  of  the  provisions  of  the 
Interstate  Commerce  Act,  the  Commission  may  deter- 

17.  33  I.  C.  C.  52,  71.  19.    Vulcan  Coal  and  Mining  Co. 

18.  Pennsylvania     R.     Co.     v.      v    Illinois  Cent.  R.  Co.,  33  I.  C  C. 
United  States,  227  Fed.  911.  52,  71. 


§  363]  The     Commebch    Commission,  639 

mine  and  prescribe^"  what  will  be  a  just  and  reasonable 
individual  or  joint  rate  or  rates,  charge  or  cliarges,  to 
be  thereafter  observed  by  such  com])anies  as  the  maxi- 
mum to  be  charged,  and  what  individual  or  joint  classi- 
lication,  regulation  or  practice  is  just,  fair  and  reason- 
able, to  be  thereafter  followed,  and  to  make  an  order  that 
the  carrier  shall  cease  and  desist  from  such  violation 
to  the  extent  to  which  the  (commission  finds  the  same 
to  exist,  and  shall  not  thereafter  i)ul)]is]i,  demand  or 
collect  any  rate  or  charge  for  such  trans])ortation  or 
transmission  in  excess  of  the  maximum  rate  or  charge 
so  prescribed,  and  shall  adopt  the  classification  and 
conform  to  and  observe  the  regulation  or  ])i'actice  so 
prescribed.  All  orders  of  the  Commission,  except  orders 
for  the  ])ayment  of  money,  sliall  take  effect  within  such 
reasonable  time,  not  less  than  thii'ty  days,  and  shall 
continue  in  force  for  such  period  of  time,  not  exceeding 
two  years,  as  shall  be  prescribed  in  the  order  of  the 
Commission,  unless  the  order  shall  be  suspended  or 
modified  or  set  aside  by  the  Commission,  or  be  suspend- 
ed or  set  aside  by  a  court  of  comjietent  jurisdiction.^^ 

§  363.  Proposed  Advances  in  Rates  may  be  Sus- 
pended by  Commission  Pending  Investigation  of  Pro- 
priety. Prior  to  the  passage  of  the  Mann-Elkins  Act  of 
1910,  there  was  no  check  upon  the  initiative  of  a  car- 
rier in  establishing  new  rate  schedules.  Advances  in 
rates  and  charges  could  be  made  by  filing  and  publish- 
ing a  schedule  in  accordance  with  the  requirements  of 
the  statute  and  the  scheduled  rate  thus  filed  was  pre- 
sumed to  be  reasonable.  A  direct  proceeding  before  the 
Commission,  upon  complaint,  was  necessary  to  deter- 
mine whether  the  new  rate  filed  conformed  to  the  stand- 
ard required  by  law — a  just  and  reasonable  rate.  The 
Commission  could  not  stay  any  advanced  rate  witliout 
a  long  delay  incident  to  a  hearing  and  a  proper  investi- 
gation.   Even  the  authority  of  the  courts  to  restrain  the 

20.     For  history  of  amendment  21.    Section  15  of  the  Act  to  Reg- 

giving  this  power  to  the  Commis-  ulate  Commerce,  appendix  A,  infra. 
sion,  see  section  68,  supra. 


640  Duties   to   Interstate   Shippers.  [§  363 

enforcement  of  unreasonable  rates  or  a  change  to  unjust 
and  discriminatory  rates  pending  an  investigation  by 
the  Commission,  was  doubtful."  To  remedy  this  situa- 
tion, Congress,  as  a  part  of  the  Mann-Elkins  Act,  passed 
an  amendment  to  section  15,  which  is  as  follows:  "When- 
ever there  shall  be  tiled  with  the  Commission  any  sche- 
dule stating  a  new  individual  or  joint  rate,  fare,  or 
charge,  or  any  new  individual  or  joint  classification,  or 
any  new  individual  or  joint  regulation  or  practice  af- 
fecting any  rate,  fare,  or  charge,  the  Commission  shall 
have,  and  it  is  hereby  given,  authority,  either  upon 
complaint  or  upon  its  own  initiative  without  complaint, 
at  once,  and  if  it  so  orders,  without  answer  or  other  form- 
al pleading  by  the  interested  carrier  or  carriers,  but  upon 
reasonable  notice,  to  enter  upon  a  hearing  concerning 
the  propriety  of  such  rate,  fare,  charge,  classification, 
regulation,  or  practice;  and  pending  such  hearing  and 
the  decision  thereon  the  Commission  upon  filing  with 
such  schedule  and  delivering  to  the  carrier  or  carriers 
affected  thereby  a  statement  in  writing  of  its  reasons 
for  such  suspension  may  suspend  the  operation  of  such 
schedule  and  defer  the  use  of  such  rate,  fare,  charge, 
classification,  regulation,  or  practice,  but  not  for  a 
longer  period  than  one  hundred  and  twenty  days  be- 
yond the  time  when  such  rate,  fare,  charge,  classifica- 
tion, regulation,  or  practice  would  otherwise  go  into 
effect;  and  after  full  hearing  whether  completed  before 
or  after  the  rate,  fare,  charge,  classification,  regulation, 
or  practice  goes  into  effect,  the  Commission  may  make 
such  order  in  reference  to  such  rate,  fare,  charge,  classi- 

22.      In    the    following    cases    it  M.  &  St.  P.  Ry.  Co.,  156  Fed.  160. 
was  held  that  the  collection  of  un-  Contra:     m.  C.  Kiser  Co.  v.  Cen- 

reasonable  rates  could  be  enjoined  tral  of  Georgia  Ry.  Co.,  152  C.  C. 

by  the  courts  pending  a  determina-  a.  552,  239  Fed.  718;   M.  C.  Kiser 

tion  of  the  matter  by  the  Inter-  ^o.  v.  Central  of  Georgia  Ry.  Co.. 

state       Commerce       Commission:  236   Fed.    573;     Columbus   Iron   & 

Northern    Pac.    R.    Co.    v.    Pacific  g^^^j  ^^   ^   Kanawha  &  M.  R.  Co.. 
Coast       Lumber       Manufacturers 

Ass'n,  91  C.  C.  A.  39,  165  Fed.  1;  ^^l  C.  C.  A.  621,  178  Fed.  261;  At- 

M.    C.    Kiser    Co.    v.    Central    of  lantic  Coast  Line  R.  Co.  v.  Macon 

Georgia    Ry.    Co.,    158    Fed.    193;  Grocery  Co.,  92  C.  C.  A.   114,  16G 

Jewett  Bros.  &  .lewett  v.  Chicago,  Fed.  206. 


§  .'j()3 1  TiiK     CoMMEJ{CE     Commission.  641 

ficatioii,  regulation,  or  i)raetice  a;:  would  \)v  proper  in  a 
proceeding-  initiated  after  the  rate,  fare,  charge,  classi- 
fi(;ati()n,  regulation,  ov  practice*  had  become  effective: 
Provided,  That  if  any  su(di  hearing  cannot  l)e  concluded 
within  the  period  of  suspension,  as  above  stated,  tlie 
Inteistate  Commerce  (^onnnission  may,  in  its  discretion, 
extend  the  time  of  suspension  for  a  further  ])eriod  not 
exceeding  six  months.  At  any  hearing  involving  a  rate 
increased  after  January  first,  nineteen  hundred  and  ten, 
or  of  a  rate  sought  to  be  increased  after  the  passage 
of  this  Act,  the  burden  of  proof  to  show  that  the  in- 
creased rate  or  proposed  increased  rate  is  just  and  rea- 
soiuible  shall  l)e  upon  the  common  carrier,  and  the  Com- 
mission shall  gi\e  to  the  hearing  and  decision  of  such 
questions  preference  over  all  othei-  (piestions  pending 
before  it  and  decide  the  same  as  speedily  as  possible." 
Under  this  amendment,  the  Commission  is  authorized 
to  suspend  the  operation  of  proposed  changes  in  rate 
schedules  until  the  propriety  and  reasonableness  thereof 
may  be  investigated.-^  This  power  includes  the  right 
to  suspend  reduction  in  rates  where  the  effect  of  such 
suspension  will  prevent  an  obvious  or  apparent  unjust 
discrimination.-*  Since  the  enactment  of  the  amend- 
ment of  1910,  the  burden  of  proof  to  show  that  an  in- 
creased rate  or  a  proposed  increased  rate  is  just  and 
reasonable,  is  n])on  the  carrier.-"" 

23.  Western  Rate  Advance  Case,  I  C.  C.  234;  In  re  Rates  on  Hay 
38  I.  C.  C.  114;  In  re  advances  to  Chicago,  34  I.  C.  C.  150;  Empire 
Switching.  Galesburg,  lUinois,  31  Coke  Co.  v.  Buffalo  &  S.  R.  Co.,  31 
I.  C.  C  294;  In  re  Advances  Coal  I.  C.  C.  573;  In  re  advances  Com- 
Jrom  Oak  Hills,  Colorado,  30  I.  C.  raodity  Rates  between  Missouri 
C.  505;  Wickwire  Steel  Co.  v.  New  River  Points,  28  I.  C.  C.  265;  Wls- 
York  Cent.  &  H.  River  R.  Co.,  30  consin  State  Millers  Ass'n  v.  Chi- 
I.  C.  C.  415;  Western  Rate  Ad-  cago.  M.  &  St.  P.  Ry.  Co.,  23  I. 
vance  Case,  20  I.  C.  C.  307.  C    C.  494;    In  re  Potato  Rates,  23 

24.  Board  of  Trade  of  Chicago  I.  C.  C.  69;  Davis  Sewing  Machine 
V  Illinois  Cent.  R.  Co.,  26  I.  C.  Co.  v.  Pittsburgh,  C.  C.  &  St.  L. 
C.  545;  In  re  Packing-house  Prod-  Ry.  Co.,  22  I.  C.  C.  291;  City  of 
ucts,  21  I.  C.  C.  68.  Spokane   v.   Northern    P.   Ry.   Co.. 

25.  East  Jersey  R.  &  T.  Co.  v.  21  I.  C.  C.  400;  Railroad  Commis- 
Central  R.  of  New  .lersey,  36  I.  sion  of  Nevada  v.  Southern  P.  Co., 
I.  C.  C.  146;  In  re  advances  Rates  21  I.  C.  C.  329;  In  re  Locomotive 
in  Chicago  Switching  District,  34  &  Tender   Rates.  21    I.  (\  C.   103; 

1    Coiitnil    (.'aiilci-s    41 


642  Duties   to    Interstate   Shippers.  [§  3G4 

§  364.  Amendment  of  1917  Prohibiting  Filing  of 
Increased  Rates  without  Approval  of  Commission.  A 
further  limitation  was  placed  upon  interstate  carriers 
in  tiling  schedules  prescribing  increased  charges  by  an 
amendment  to  section  15,  enacted  in  1917,-"  which  pro- 
vides that  until  January  1,  1920,  no  increased  rate,  fare, 
charge,  or  classification,  shall  be  filed,  except  after  ap- 
proval thereof  lias  been  secured  from  the  Commission. 
Such  approval  may,  in  the  discretion  of  the  Commis- 
sion, be  given  without  formal  hearing,  and,  in  such  a 
case,  shall  not  affect  any  subsequent  proceeding  relative 
to  such  rate,  fare,  charge  or  classification. 

§  365.  Rules  of  Carriers  Governing  Distribution, 
Exchange,  Interchange  and  Return  of  Cars.  By  an 
amendment  enacted  in  1917  to  the  Act  to  Regulate  Com- 
merce,-^ the  subject  matter  of  car  service,  that  is,  the 
rules  and  regulations  governing  the  movement,  distribu- 
tion, exchange,  interchange  and  return  of  cars  used  in 
the  transportation  of  property  by  all  carriers  subject  to 
the  statute,  was  placed  under  the  jurisdiction  of  the 
Commission,  This  amendment  is  as  follows:  "The  term 
'car  service'  as  used  in  this  Act  shall  include  the  move- 
ment, distribution,  exchange,  interchange,  and  return 
of  cars  used  in  the  transportation  of  property  by  any 
carrier  subject  to  the  provisions  of  this  Act.  It  shall 
be  the  duty  of  every  such  carrier  to  establish,  observe, 
and  enforce  just  and  reasonable  rules,  regulations  and 
practices  with  respect  to  car  service,  and  every  unjust 
and  unreasonable  rule,  regulation,  and  practice  with 
respect  to  car  service  is  prohibited  and  declared  to  be 
unlawful.  The  Interstate  Commerce  Commission  is  here- 
by authorized  by  general  or  special  orders  to  require 
all  carriers  subject  to  the  provisions  of  the  Act,  or  any 
of  them,  to  file  with  it  from  time  to  time  their  rules  and 
regulations  with  respect  to  car   service,   and  the  com- 

In  re  Grain  Product  Rates,  21  I.  C.  20.     Act  of  August  9,  1917,  Ap- 

C.     22;     Western     Rate     Advance  pendix  A,  infra. 

Case,  20  I.  C.  C.  307;    Eastern  Ad-  27.     Act  of  May  29,   1917.     Ap- 

vance  Rate  Case,  20  I.  C.  C.  243.  pendix  A,  infra. 


§  365]  The     Commeece     Commission.  643 

mission  may,  in  its  discretion,  direct  tliat  the  said  rules 
and  regulations  shall  he  incorporated  in  their  schedules 
showing  rates,  fares,  and  charges  for  transportation  and 
he  suhject  to  any  or  all  of  the  provisions  of  the  Act 
relating  thereto.  The  commission  shall,  after  hearing, 
on  a  complaint  or  upon  its  own  initiative  without  com- 
plaint, estahlish  reasonable  rules,  regulations,  and  prac- 
tices witli  respect  to  car  service,  including  the  classifi- 
cation of  cars,  compensation  to  be  paid  for  the  use  of 
any  car  not  owned  by  any  such  common  carrier  and  the 
penalties  or  other  sanctions  for  iionobservance  of  such 
rules.  Whenever  the  commission  shall  be  of  opinion 
that  necessity  exists  for  immediate  action  with  respect 
to  the  supply  or  use  of  cars  for  transportation  of  prop- 
erty, the  commission  shall  have,  and  it  is  hereby  given, 
authority,  either  upon  complaint  or  ui)on  its  own  initia- 
tive without  complaint,  at  once,  if  it  so  orders,  without 
answer  or  other  formal  pleading  by  the  interested  car- 
rier or  carriers,  and  with  or  without  notice,  hearing, 
or  the  making  or  filing  of  a  report,  according  as  the  com- 
mission may  determine,  to  suspend  the  operation  of  any 
or  all  rules,  regulations,  or  practices  then  established 
with  respect  to  car  service  for  such  time  as  may  be 
determined  by  the  commission,  and  also  authority  to 
make  such  just  and  reasonable  directions  with  respect 
to  car  service  during  such  times  as  in  its  opinion  will 
best  promote  car  service  in  the  interest  of  the  public 
and  the  commerce  of  the  people.  The  directions  of  the 
commission  as  to  car  service  may  be  made  through  and 
by  such  agents  or  agencies  as  the  commission  shall 
designate  and  appoint  for  that  purpose.  In  case  of  fail- 
ure or  refusal  on  the  part  of  any  carrier,  receiver,  or 
trustee  to  comply  with  any  direction  or  order  with  res- 
pect to  car  service,  such  carrier,  receiver,  or  trustee  shall 
be  liable  to  a  penalty  of  not  less  than  $100  nor  more 
than  $500  for  each  such  offense  and  $50  for  each  and 
every  day  of  the  continuance  of  such  offense,  which 
shall  accrue  to  the  United  States  and  may  be  recover- 
ed in  a  civil  action  brought  by  the  Fnitod  States." 


G44  Duties   to   Interstate   Shippers.  [§  366 

§  366.     Statute   Compelling  Carriers   to   Establish 
Through  Routes  and  Joint  Rates  upon  Order  of  Com- 
mission,  Valid.     The  validity   and   constitutionality   of 
tlie  amendments  of  1906  and  1910-'  to  section  15  of  the 
Act  to  Regulate  Commerce  compelling  carriers  engaged 
in  interstate  and  foreign  commerce  to  establish  through 
routes  and  joint  rates  after  hearing  before  the  Commis- 
sion when  they  have  voluntarily  failed  or  neglected  to 
do  so,  has  been  affirmed  by  the  national  Supreme  Court.'' 
In  Paducah  Board  of  Trade  v.  Illinois  Cent.  R.  Co.,'" 
upon  a  complaint  that  the  rates  on  logs  and  lumber  to 
Paducah,  Ky.,  from  points  in  Louisiana  and  Arkansas 
were  unjustly  discriminatory  as  compared  with  tlie  rates 
from  the  same  producing  territory  to  Cairo,  111.,  the  Com- 
mission ordered  the  carriers  to  establish  through  routes 
to   Paducah  from  the  Louisiana  and   Arkansas  points 
and  joint  rates  applicable  via  such  through  routes  no 
higher  than  the  rates  maintained  from  the  same  points 
to  Cairo,  111.    Thereafter,  upon  a  petition  of  the  carriers 
to  set  aside  the  order,  it  was  held  to  be  valid  and  en- 
forcible  by  a  federal  district  court,"  and,  upon  appeal 
to  the  federal  Supreme  Court,  the  decree  dismissing  the 
bill  was  sustained.    "The  carriers  deny,"  said  Mr.  Jus- 
tice Brandeis,  "that  the  Commission  has  the  power  to 
compel  them  to  establish  through  routes  and  joint  rates. 
It  is  admitted  that   all  the  complaining  carriers  were 
interstate  railroads  and  were  engaged  otherwise  in  inter- 
state commerce.     It  is  undisputed  that  for  many  years 
there  has  been  over  the  lines  of  two  of  these  carriers  a 
through  route  to  Paducah  via  Cairo,  and  over  the  other 
a  through  route  via  Memphis;  and  that  on  all  the  lines 
there  were  through  rates.     But  it  is  contended  that  if 
a  carrier  establishes  a  through  route  and  joint  rate  with 
its  connections,  it  creates  in  effect  a  relation  of  partner- 
ship; that  this  relation  must  be  entered  into,  if  at  all, 
voluntarily;  and  that  to  'compel  a  carrier  chartered  by 

28.  Section   72,  supra.  30.     37  I.  C.  C.  719. 

29.  St.  Louis  Southwestern  R.  31.  St.  Louis  Southwestern  Ry. 
Co.  V.  United  States,  245  U.  S.  136,  Co.  v.  United  States,  234  Fed.  668. 
62  L.  Ed.  ,  38  Sup.  Ct.  49. 


§    'A6(y\  THK       CoMMKHCH       COMMISSION.  645 

a  state'  1o  ciitci-  into  siicli  a  relation  Avitli  a  carricM-  diai"- 
toi-('(l  in  another  state  violates  tlie  P'iftli  Amendment  of 
tlie    f<'deral    C'onstitution.      The    complaining    carriers 
having  engaged  in  tliis  jiarticnlar  commerce,  it  is  clear 
that  Congress  has  power  to  regulate  it.     Atlantic  Coast 
Line  Case,  219  U.  S.  186,  31  Sup.  Ct.  164,  55  L.  Ed.  167, 
31  L.  R.  A.  (N.  S.)  7.    No  reason  appears  why  the  regu- 
lation might  not  take  the  form  of  compelling  the  suh- 
stitution  of  a  joint  rate  for  a  through  rate  made  hy  a 
comhination  of  local  rates  or  by  a  combination  of  a  local 
rate  with  a  joint  rate  to  an  intermediate  point.     Cincin- 
nati, New  Orleans  «S:  Texas  Railway  v.  Interstate  Com- 
merce Commission,  162  U.  S.  184,  16  Sup.  Ct.  700,  40  L. 
Ed.   935.     So  far  as  the   order  relates   to   the   existing 
routes  via   Cairo   and   Memphis   respectively   it   did   no 
more  than  this:     It  substituted  for  the  through  rate  of 
22  cents  (made  up  on  two  of  the  lines  of  a  combination 
of  a  joint  rate  or  local  rate  of  16  cents  to  Cairo  with  a 
local  rate  on  the  Illinois  Central  of  6  cents  from  Cairo 
to  Paducah),  a  joint  rate  of  16  cents  from  the  'blanket 
territory'  to  Paducah;  thus  reducing  the  existing  through 
rate.      The    carrier    connecting    at    Cairo    (the    Illinois 
Central)  and  all  but  one  of  the  carriers  connecting  with 
these  complainants  in  the  'blanket  territory,'  acquiesced 
in  the  order  establishing-  this  joint  rate.     The  Illinois 
Central's  share  of  the  22-cent  rate  was  its  local  rate  of 
6   cents.      If   these   complaining    carriers   cannot    reach 
satisfactory  agreements  with  the  Illinois  Central  as  to 
what  its  share  of  the  16-cent  rate  should  be,  they  may, 
under    section    15    of   the    Act   to    Regulate    Commerce 
(Comp.  St.  1916,  sec.  8583),  apply  to  the  Commission  for 
an  appropriate  order.     In  respect  to  the  Rock  Island 
the  situation  is  similar.    The  order  entered  does  not  re- 
quire any  complaining  carriers  to  substitute  the  route 
via  Memphis  for  that  via  Cairo;  nor  dees  it  require  any 
to  establish  an  additional  route  via  Memphis,     Carriers 
are  left  free  to  furnish  the  through  transportation  ei- 
ther via  Cairo  or  via  Memphis.     The  order  merely  com- 
pels a  through  route  and  a  joint  rate  of  16  cents  to  Pa- 
ducah.    If  they  elect  to  continue  existing  through  route 
via  Cairo,  the  order  operates  merely  to  introduce  reduced 


H46  Duties   to   Intebstate   Shippers.  [§  366 

joint  rates.  If  they  elect  to  discontinue  the  through 
routes  via  Cairo,  the  order  operates  to  establish  throug^h 
routes  and  joint  rates  via  Memphis,  which  the  findings 
of  the  Commission  fully  justify.  That  Congress  has 
power  to  authorize  the  Commission  to  enter  an  order 
for  through  routes  and  joint  rates,  like  that  here  com- 
plained of,  has  been  heretofore  assumed.  No  reason  is 
shown  for  questioning  its  existence  now.  The  provisions 
of  the  Act  to  Regulate  Commerce  as  amended  (1887,  c. 
104,  sections  1,  12,  15,  24  Stat.  379;  1906,  c.  3591,  sec.  4, 
34  Stat.  584;  1910,  c.  309,  sec.  12,  36  Stat.  539,  552  (Comp. 
St.  1916,  sections  8563,  8576,  8583)  are  also  appropriate 
to  confer  this  authority  upon  the  Commission.  And 
there  is  no  foundation  in  fact  or  law  for  the  contention 
of  complainants  that  the  'Commission  disregarded  the 
provision  of  section  15,  by  which  it  is  prohibited  from 
embracing  in  a  through  route  Mess  than  the  entire  length 
of  a'  railroad  'unless  to  do  so  would  make  the  route  un- 
reasonably long.'  Whether  a  carrier  engaged  solely  in 
intrastate  commerce  could  be  compelled  by  Congress  to 
enter  interstate  commerce,  or  even  whether  a  carrier, 
having  entered  into  some  interstate  commerce,  may  be 
compelled  to  enter  into  all,  we  have  no  occasion  to  con- 
sider; for  the  complaining  carriers  had  voluntarily  enter- 
ed into  the  particular  class  of  interstate  commerce  with 
Paducah  to  which  alone  the  order  related." 

§  367.    Powers  of,  and  Limitations  Upon,  Commis- 
sion in  Establishing  Through  Routes  and  Joint  Rates. 

The  Interstate  Commerce  Commission  has  no  power  to 
establish  through  routes  or  joint  rates  when  the  trans- 
portation is  wholly  by  water^^  or  between  street  electric 
passenger  railways  not  engaged  in  the  general  business 
of  transporting  freight  in  addition  to  their  passenger 
and  express  business,  and  railroads  of  a  different  charac- 
ter.''^   But  it  may,  after  hearing,  establish  through  routes, 

.32.     For  history  of  amendments  33.     Chicago,  O.  &  P.  Ry.  Co.  v. 

granting  and  extending  the  author-  Chicago  &  N.  W.  Ry.  Co.,  33  I.  C 

Ity  of  Commission  over  joint  rates  C    573;    Board  of  Trade  of  Louis- 

and  through  routes,  see  Section  72,  ville   v.    Indianapolis,   C.   &   S.   T. 

supra.  Co.,  27  I.  C.  C.  499;    St.  Louis,  S. 


§  367 


Thk     Commebck    Commission, 


04^ 


joint  cla.s«ilicati(nis  and  joint  rates,  and  prescribe  the 
division  of  such  rates,  and  the  terms  and  conditions 
under  which  through  routes  shall  be  operated,  when- 
ever carriers,  subject  to  the  Act,  refuse  or  neglect  to  es- 
tablish such  through  routes,  joint  classifications  or  joint 
rates."  These  powers  extend  even  when  one  of  the  con- 
necting carriers  is  a  water  line.""  In  the  establislinient 
of  such  through  routes  no  carrier  may  be  compelled, 
without  its  consent,  to  embrace  in  such  route  substantial- 
ly less  than  the  entire  length  of  its  railroad  and  of  any 
intermediate  railroad  operated  in  conjunction  and  under 
a  common  management  or  control  therewith  which  lies 
between  the  termini  of  such  proposed  through  route  un- 


&.  p.  H.  Co.  V.  I'eoria  &  P.  U.  Ry. 
Co..   26   I.   C.   C.   22(j. 

34.  Paducah  Board  of  Trade  v. 
Illinois  Cent.  R.  Co.,  37  I.  C.  C. 
719;  Federal  Sugar  Refining  Co 
V.  Central  R.  of  New  Jersey.  35  I. 
C.  C.  i?S;  Nitro  Powder  Co.  v. 
West  Shore  R.  Co.,  35  I.  C.  C.  77: 
Corporation  Commission  of  N.  C 
V.  AT.ohison.  T  &  S.  F.  R.  Co..  33 
I.  C.  C.  487;  Michigan  Bean  Job- 
bers' Ass'n  V.  Grand  Rapids  &  I. 
Ry.  Co.,  33  I.  C.  C.  318;  American 
National  Live  Stock  Ass'n  v. 
Southern  P.  Co.,  32  I.  C.  C.  438; 
Mobile  Chamber  of  Commerce  v. 
Mobile  &  0.  R.  Co..  32  I.  C.  C.  272. 
Burford  v.  Louisville  &  N.  R.  Co., 
HI  T.  C.  C.  182:  Tampa  Board  of 
Trade  v.  Louisville  &  N.  R.  Co., 
30  I.  C.  C.  377;  Rogers  &  Prinkey 
V.  Baltimore  &  0.  R.  Co.,  30  I. 
C.  C.  32;  In  re  advances  Lumber, 
Or.  &  Wash,  to  Eastern  Points,  29 
I.  C.  C.  609;  Toledo  Produce  Ex- 
change V.  Ann  Arbor  R.  Co.,  27 
I.  C.  C.  536;  Southwestern  Mo. 
Millers'  Club  v.  St.  Louis  &  S.  F. 
R.  Co.,  26  I.  C.  C.  630;  Omaha 
Grain  Exchange  v.  Chicago,  B.  & 
Q.  R.  Co.,  26  I.  C.  C.  553:  Texas 
Cement  Plaster  Co.  v.  St.  Louis  & 


S.  F.  R.  Co.,  26  I.  C.  C.  508;  Blake- 
ly  S.  R.  Co.  v.  Atlantic  Coast  Line 
R.  Co.,  26  I.  C.  C.   344. 

35.  Port  Huron  &  D.  S.  S.  Co. 
V  Pennsylvania  R.  Co.,  35  I.  C. 
C.  475;  Spartanburg  Chamber  of 
Commerce  v.  Southern  Ry.  Co.,  34 
I.  C.  C.  484;  Kansas  City,  Missou- 
ri River  Nav.  Co.  v.  Chesapeake  & 
O.  Ry.  Co.  34  I.  C.  C.  67;  Stone's 
Exp.  V.  Boston  &  M.  R.  Co.,  33  I. 
C.  C.  638;  Chattanooga  Packet  Co. 
V,  Illinois  Cent.  R.  Co.,  33  I.  C. 
C.  384;  New  York  Dock  Ry.  Co. 
V.  Baltimore  &  O.  R.  Co..  32  I.  C. 
C.  568;  Eastern  Shore  Develop- 
ment S.  S.  Co.  V.  Baltimore  &  O.  R. 
Co..  32  I.  C.  C.  238;  Pacific  Nav. 
Co.  v.  Southern  P.  Co.,  31  I.  C. 
C.  472;  Decatur  Nav.  Co.  v.  Louis- 
ville &  N.  R.  Co.,  31  I.  C.  C.  281; 
Milwaukee  Produce  &  Fruit  Ex- 
change V.  Crosby  Transp.  Co.,  30 
I  C.  C.  653;  Tampa  Board  of 
Trade  v.  Louisville  &  N.  R.  Co.,  30 
I  C.  C.  377;  Truckers  Transfer 
Co.  V.  Charleston  &  W.  C.  Ry.  Co.. 
27  I.  C.  C.  275;  Augusta  &  S.  S.  S. 
Co.  v.  Ocean  S.  S.  Co.  of  Savanafi, 
26  I.  C.  C.  380:  Murray  Litherage 
&  Transp.  Co.  v.  Delaware  &  H. 
Co..  25  I.  C.  C.  388. 


648 


Duties   to    Interstate    Shippers. 


[§  367 


less  such  througli  route  would  thereby  be  unreasonably 
long  as  compared  with  another  practicable  through 
route  which  could  otherwise  be  established.^® 

§  368.  When  Commission  may  Establish  Through 
Routes  and  Maximum  Joint  Rates  between  Rail  and 
Water  Lines.  AVheii  common  carriers  transport  prop- 
erty from  one  point  to  another  in  the  United  States  by 
rail  and  water  through  the  Panama  Canal  or  otherwise, 
^the  transportation  not  being  entirely  within  the  limits 
of  a  single  state,  the  Commission .  has  jurisdiction  of 
such  transportation  and  of  the  rail  and  water  carriers 
participating  therein  to  establish  through  routes  and 
maximum  joint  rates  between  and  over  such  rail  and 
water  lines,  and  may  determine  all  the  terms  and  condi- 
tions under  which  such  lines  shall  be  operated  in  the 
handling  of  the  traffic  embraced.'' 


36.  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
V.  United  States,  217  Fed.  80;  Og- 
den  Gateway  Case  v.  Denver  &  R. 
G.  R.  Co.,  35  I.  C.  C.  131;  Mer- 
cliants  &  Manufacturers  Ass'n  v. 
Central  R.  of  New  Jersey,  30  I. 
C.  C.  396;  In  re  advances  Lumber 
from  North  Pacific  Coast,  30  I.  C. 
C.  Ill:  Huglies"  Creek  Coal  Co.  v. 
Kanawha  oi  M.  Ry.  Co.,  29  I.  C. 
C.  671;  Wichita  Board  of  Trade 
v.  Abilene  &  S.  Ry.  Co.,  29  I.  C.  C. 
376;  Richmond-Eureka  Mining 
Co.  V.  Eureka  N.  Ry.  Co.,  29  I.  C. 
C.  62;  Waverly  Oil  Works  Co.  v. 
Pennsylvania  R.  Co.,  28  I.  C.  C. 
621;  Iowa  Railroad  Commission- 
ers V.  Arizona  E.  R.  Co.,  28  I.  C. 
C.  563;  United  States  v.  Union 
P.  R.  Co..  28  I.  C.  C.  518;  Haver- 
hill Box  Board  Co.  v.  Boston  &  A. 
R.  Co.,  28  I.  C.  C.  336;  In  re  ad- 
vances Cotton  Seed  and  Products, 
from  Texas,  28  I  C.  C.  219;  In  re 
Coal  Rates  to  Milwaukee,  Wiscon- 
sin, 27  I.  C.  C.  223;  In  re  Lumber 
Rates  from  Mississippi,  27  I.  C. 
C.    6;     Mansfield    Hardwood    Lum- 


ber Co.  V.  Tremont  &  G.  R.  Co.  26 
I.  C.  C.  138. 

37.  Section  6  of  the  x\ct  to  Reg- 
ulate Commerce,  Appendix  A; 
Lamb-Fish  Lumber  Co.  v.  Yazoo  u 
M.  V.  R.  Co.,  38  I.  C.  C.  278; 
Black  &  White  River  Transp.  Co. 
v.  Missouri  P.  Ry.  Co.,  37  I.  C.  C. 
244;  Pine  Bluff  Traffic  Bureau  v. 
Louisville  &  N.  R.  Co.,  37  I.  C. 
C.  218;  Federal  Sugar  Refining  Co. 
V.  Central  R.  Co.  of  New  .lersey, 
35  I.  C.  C.  488;  Port  Huron  &  Du- 
luth  S.  S.  Co.  V.  Pennsylvania  R. 
Co.,  35  I.  C.  C.  475;  Damon  v.  Cros- 
by Transp.  Co.,  33  I.  C.  C.  448; 
Chattanooga  Packet  Co.  v.  Illinois 
Cent.  R.  Co.,  33  I.  C.  C.  384;  New 
York  Dock  Ry.  Co.  v.  Baltimore  & 
O.  R.  Co..  32  I.  C.  C.  568;  Eastern 
Shore  Development  S.  S.  Co.  v. 
Baltimore  &  0.  R.  Co.,  32  I.  C.  C. 
238;  Pacific  Nav.  Co.  v.  Southern 
P.  Co.,  31  I.  C.  C.  472;  Louisiana 
Sugar  Planters  Ass'n  v.  Illinois 
Cent.  R.  Co..  31  I.  C.  C.  311;  Bowl- 
ing Green  Business  Men's  Protec- 
tive Ass'n    V.    Evansville   &   B.   G. 


§    37(1]  TlIK       T'OMMEKCK       CoMMISSIOX.  649 

§  369.  Jurisdiction  of  Commission  in  Connection 
with  Transportation  to  Adjacent  Foreign  Countries. 
The  ('oiiiiiiissioii  lias  no  aulliurily  io  prescribe  joint 
tliion.i^h  rates  from  an  adjacent  foreign  country  into  the 
Tnitcd  States;  })nt  it  can  control  tlie  rates  wliicli  car- 
riers charge  from  the  i)ortK  of  entry  in  the  United  States 
to  destinations  in  the  United  States,  whether  they  are 
joint  rates  or  sejiarately  estahlislied  rates  ajiplicable  to 
tlie  through  transportation.''  The  extent  of  tlie  authori- 
ty of  the  Commission  in  connection  witli  transportation 
to  an  adjacent  foreign  country  is  over  that  portion  on 
tlie  line  within  the  confines  of  the  United  States.^^  The 
Commission  has  not,  therefore,  authority  to  regulate 
charges  for  the  transportation  of  commodities  from  Vaii- 
couver,  Canada  to  New  York.*" 

§  370.  Commission  may  not  Compel  a  Carrier  to 
Receive  and  Switch  Carload  Freight  to  Industries  on 
its  Terminals.  Section  3  of  the  Act  to  Regulate  Com- 
merce provides  that  the  statute  shall  not  be  construed 
to  require  any  carrier  to  give  the  use  of  its  tracks  or 
terminal  facilities  to  another  carrier  engaged  in  like 
business;  but  if  a  carrier  chooses  voluntarily  to  throw 
open  its  terminals  to  many  branches  of  traffic,  it  there- 
by denies  itself  the  protection  of  the  statute  and  makes 
its  terminal   a  public  convenience.*^     Section   15  of  the 

p.   Co.,   31   I.   C.   C.  301;     Decatur  38.      Carey    Mfg.    Co.    v.    Grand 

Nav.  Co.  V.  LouisviUe  &  N.  R.  Co.,  Trunk  W.  Ry.  Co..  ?,(i  I.  C.  C    -xxs 

•■^1   I.  C.  C.  281:    Tampa  Board  of  39.      International   Paper  Co"  v 

Tiadp   V.   Lo.iisville   &   N.   R.   Co..  Delaware  &  H.  Co.,  33  I.  C.  C.  270; 


Fullerton  Lumber  &  Shingle  Co.  v. 


30   I.   C.   C.   377;     Seattle   Shingle 

Co.    V.   Chicago,    M.   &   St.    P.    Ry.  „  ,,.      , 

Co.,  30  I.  C.  C.  364;    Railroad  Com-  f«""^gham.  B.  &  B.  C.  R.  Co..  2-. 

mission     of     Florida    v.     Atlantic  ^-  ^-  *^-  ^'^^'-    ^^^'^^   ^^"^^^  ^obar- 

Coast  Line  R.  Co.,  28  L  C.  C.  356;  ^^  ^"-  ^'-   Hl'nois  Cent.  R.  Co.,  17 

Truckers  Transfer  Co.  v.  Charles-  ^-  ^-  ^-  ■^^^■ 

ton  &  \V.   C.   Ry.   Co.,   27   I.  C.   C.  ^^-    Carlowitz  &  Co.  v.  Canadian 

275:    In  re  Wharfage  Facilities  at  P-  R-  Co..  46  I.  C.  C.  .) 

Pensacola,  Florida,  27  I.  C.  C.  252;  41.      Louisville   &    N.    R.    Co.    v. 

Augusta  &  S.  S.  S.  Co    v.  Ocean  S.  United   States,  238  U.   S.   1.   .^9   L. 

S.    Co.    of    Savannah,    26    L    C.    C.  Ed.   1177.  35   Sup.  Ct    696 
380. 


650  l^T'TiEs   TO    Interstate    Shippers.  [§  370 

Act  provides  that  no  carrier  may  be  required  to  join 
in  a  throngh  ronte  which  includes  substantially  less  than 
all  its  line  of  railroad  between  the  termini  of  the  route, 
unless  to  do  so  would  make  such  route  unreasonably 
long.  Construing  these  provisions  of  the  statute,  the 
Commission  formerly  held  that  terminal  yards  and  tracks 
of  a  carrier  were  subject  to  the  jurisdiction  of  the  Com- 
mission, and  in  establishing  through  routes  and  joint 
rates,  such  terminals  stood  in  the  same  light  as  any  other 
part  of  the  railroad.''  Applying  this  rule,  an  order 
was  made  requiring  a  carrier  to  receive  cars  from  an- 
other carrier  for  the  purpose  of  switching  them  to  indus- 
tries located  on  its  own  tracks  and  terminals  in  the 
same  city;*^  but  on  rehearing,  the  Commission  held  that, 
in  its  original  order  and  report,  it  exceeded  its  powers 
under  the  statute  in  requiring  the  defendant  to  receive 
cars  of  interstate  freight  from  the  complainant  for  de- 
livery to  industries  located  on  its  tracks  in  the  same 
city.**  The  proviso  in  section  3  of  the  act  protects  a 
carrier  that  has  secured  and  built  up  valuable  terminals, 
without  which  its  railroad  would  be  of  little  use,  against 
having  those  terminals  utilized  by  a  competing  carrier 
that  has  not  provided  itself  with  adequate  terminals  and 
that  desires  to  thus  secure  the  line  haul  which  the  car- 
rier owning  the  terminals  is  prepared  to  perform  and 
which  the  other  carrier  cannot  secure  unless  its  cars 
have  the  use  of  the  terminals  of  its  competitor.*^  The 
refusal  of  a  carrier  to  receive  from  or  deliver  to  an- 
other carrier  entering  the  same  city,  interstate  ship- 
ments destined  to  or  originating  at  industries  on  the 
former's  tracks,  is  not  a  violation  of  the  statute,  because 
the  performance  of  such  a  switching  service  would  re- 
quire the  carrier  so  refusing,  to  participate  in  through 
routes  which  would  include  substantially  less  than  its 

42.  Waverly  Oil  Works  Co.  v.  44.  Iowa  &  S.  W.  Ry.  Co.  v.  Chi- 
Pennsylvania  R.  Co.,  28  I.  C.  C.  cago,  B.  &  Q.  R.  Co.,  42  I.  C.  C. 
621;     St.  Louis,  S.  &  P.  R.  Co.  v.       389. 

Peoria  &  P.  U.  R.  Co.,  26  I.  C.  C.  45.    Louisville  Board  of  Trade  v. 

226.  Louisville  &  N.  R.  Co.,  40  I.  C.  C. 

43.  lovv'a  &  S.  W.  Ry.  Co.  v.  Chi-  fi79. 
cago,  B.  &  Q.  R.  Co.,  32  I.  C.  C.  172. 


$37 


'I'liK     ('oMMKiiCE     Commission. 


651 


entire  line  of  railroad  hctwcH^i  tlie  termini  of  such  routes, 
and  would  eontravene  the  proviso  of  section  3  wliich 
protects  the  terminals  of  a  carrier/" 

§  371.  Commission  may  Authorize  Carriers  to 
Charge  Less  for  Longer  than  for  Shorter  Distance.  Car- 
riers are  prohibited  under  the  provisions  of  Section  4 
of  the  statute  from  cliar^inf^  or  receiving  any  g-reater 
compensation  in  the  aggregate  for  the  transportation 
of  passengers,  or  of  like  kind  of  property,  for  a  shorter 
tlian  for  a  longer  distance  over  the  same  line  or  route 
in  the  same  direction,  the  shorter  being  included  within 
the  longer  distance,  or  to  charge  any  greater  compensa- 
tion as  a  through  route  than  the  aggregate  of  the  inter- 
mediate rates  subject  to  the  i)rovisions  of  the  statute.*^ 
The  Interstate  Commerce  Commission  is,  however  au- 
thorized, upon  the  application  of  a  carrier,  in  special 
cases,  and  after  investigation,  to  permit  a  carrier  to 
charge  less  for  a  longer  than  for  a  shorter  distance  for 
tlie  transportation  of  passengers  or  property.*^    The  Com- 


46.  Kansas  City  &  M.  Ry.  Co. 
V.  St.  Louis  &  S.  F.  R.  Co.,  4G  I. 
C.  C.  464. 

47.  For  history  of  amendments 
to  Section  4  see  Section  79,  suijra. 

48.  United  States  v.  Merchants' 

and  Manufacturers'  Traffic  Ass'n 
of  Sacramento,  242  U.  S.  178,  61 
L.  Ed.  233,  37  Sup.  Ct.  24;  United 
States  V.  Louisville  &  N.  R.  Co., 
236  U.  S.  318,  59  L.  Ed.  598,  35 
Sup.  Ct.  363;  United  States  v. 
Louisville  &  N.  R.  Co.,  235  U.  S. 
314,  59  L.  Ed.  245,  35  Sup.  Ct. 
113;  United  States  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  234  U.  S.  476. 
58  L.  Ed.  1408,  34  Sup.  Ct.  986: 
Interstate  Commerce  Commis- 
sion V.  Louisville  &  N.  R.  Co.,  190 
U.  S.  273.  47  L.  Ed.  1047.  23  Sup. 
Ct.  687;  East  Tennessee.  V.  &  G. 
Ry.  Co.  V.  Interstate  Commerce 
Commission,  181  U.  S.  1,  45  L. 
Ed.   719,   21   Sup.  Ct.  516:     Louis- 


ville &  N.  R.  Co.  v.  Behlmer,  175 
U.  S.  648,  44  L.  Ed.  309,  20  Sup. 
Ct.  209;  Interstate  Commerce 
Commission  v.  Alabama  Midland 
R.  Co.,  168  U.  S.  144,  42  L.  Ed. 
414,  18  Sup.  Ct.  45;  Texas  &  P. 
R-  Co.  v.  Interstate  Commerce 
Commission,  162  U.  S.  197,  40  L. 
Ed.  940,  16  Sup.  Ct.  666;  Cincin- 
nati, N.  0.  &  T.  P.  R.  Co.  V.  In- 
terstate Commerce  Commission, 
162  U.  S.  184.  40  L.  Ed.  935,  16 
Sup.  Ct.  700;  Nashville  Grain 
Exchange  v.  United  States,  234 
Fed.  699;  Merchants'  and  Manu- 
facturers' Traffic  Ass'n  of  Sacra- 
mento V.  United  States,  231  Fed. 
292;  Louisville  &  N.  R.  Co.  v. 
United  States,  225  Fed.  571:  Gra- 
ham &  G.  C.  Traffic  Ass'n  v.  Ari- 
zona E.  R.  Co..  40  I.  C.  C.  573;  In. 
land  Seed  Co.  v.  Oregon-Washing- 
ton R.  &  N.  Co..  40  I.  C.  C.  517; 
Young  V.   Louisville  &  N.   R.  Co., 


652 


Duties   to   Interstate   Shippebs. 


[§  371 


mission  may,  from  time  to  time,  prescribe  the  extent  to 
Trhieli  a  common  carrier  may  be  relieved  from  the  oper- 
ation of  Section  4. 

§  372.  Commission  may  Authorize  Rail  Carriers 
to  Continue  Ownership  of  Water  Lines.  Interstate  rail 
and  other  carriers  subject  to  federal  control  are,  since 
July  1,  1914,  prohibited  from  owning  lines  or  having 
any  interest  whatever  in  water  lines  or  vessels  carrying 
freight  or  passengers  if  they  actually  compete  or  may 
compete  for  traffic  with  such  water  lines  or  vessels.*^ 
The  question  whether  competition  actually  exists  or  is 
possible  between  such  rail  carriers  and  water  lines  must 
be  determined  by  the  Commission.  However,  if  any  serv- 
ice bv  water  other  than  through  the  Panama  Canal  main- 


40  I.  C.  C.  308;  Berry  Coal  & 
Coke  Co.  V.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  40  I.  C.  C.  175;  In  re 
Reopening  Fourth  Section  Appli- 
cations, 40  I.  C.  C.  35;  Hender- 
son Cotton  Mills  V.  Louisville  & 
N.  R.  Co.,  39  I.  C.  C.  399;  City 
of  Marshall  v.  Texas  &  P.  Ry.  Co., 
39  I.  C.  C.  249;  Bennett  &  Son  v. 
Chesapeake  &  O.  Ry.  Co.,  38  I. 
C.  C.  310;  McCaull-Dinsmore  Co. 
V.  Great  N.  Ry.  Co.,  38  I.  C.  C. 
297;  Rates  on  Iron  &  Steel  Arti- 
cles, 38  I.  C.  C.  237;  Merchants 
Produce  Co.  v.  Oregon-Washing- 
ton R.  &  N.  Co.,  38  I.  C.  C.  209; 
National  Rolling  MiU  Co.  v.  Chi- 
cago &  E.  I.  R.  Co.,  38  I.  C.  C. 
108;  Brownsville  Cotton  Oil  & 
Ice  Co.  V.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  37  I.  C.  C.  503;  Hottelet  & 
Co.  V.  Chesapeake  &  O.  Ry.  Co., 
37  I.  C.  C.  382;  Duncan  &  Co. 
V.  NashviHe,  C.  &  St.  L.  R.  Co., 
35  I.  C.  C.  477;  Board  of  Trade 
of  Kansas  City  v.  Chicago,  M.  & 
St.  P.  Ry.  Co..  34  I.  C.  C  208;  In 
re  Commodity  Rates  to  Pacific 
Coast  Terminals.  34  I.  C.  C.  13; 
Railroad   Commissioners   of   Mon- 


tana V.  Atchison,  T.  &  S.  F.  R. 
Co.,  32  I.  C.  C.  316;  Railroad 
Coni'rs  of  Montana  v.  Butte,  A.  & 
P.  Ry.  Co.,  31  I.  C.  C.  641;  In  re 
advances  on  Boots  and  Shoes 
from  Boston,  Mass.,  31  I.  C.  C. 
154;  In  re  Tropical  Fruits  from 
Gulf  Ports,  30  I.  C.  C.  621;  In 
re  Fourth  Section  v.  Southeastern 
Roads,  30  I.  C.  C.  153;  Stewart- 
Greer  Lumber  Co.  v.  St.  Louis,  I. 
M.  &  S.  Ry.  Co.,  29  I.  C.  C.  120; 
Maier  &  Co.  v.  Southern  P.  Co.. 
29  I.  C.  C.  103;  Texarkana 
Freight  Bureau  v.  St.  Louis,  I. 
M.  &  S.  Ry.  Co.,  28  I.  C.  C.  569; 
Blakely  S.  R.  Co.  v.  Atlantic 
Coast  Line  R.  Co.,  26  I.  C.  C.  344; 
In  re  Southern  Ry.  Co.,  25  I.  C. 
C.  407;  Appalachla  Lumber  Co. 
v.  Louisville  &  N.  R.  Co.,  25  I.  C. 
C.  193;  Bowling  Green  Business 
Men's  Protective  Ass'n  v.  Louis- 
ville &  N.  R.  Co.,  24  I.  C.  C.  228; 
In  re  Fourth  Section.  24  I.  C.  C. 
192;  City  of  Spokane  v.  Northern 
P  Ry.  Co..  21  I.  C.  C.  400;  Rail- 
road Commission  of  Nevada  v. 
Southern  P.  Co.,  21  I.  C.  C.  329. 
49.     Section  97,  supra. 


§  374]  Thk    Commebce    Commlssiox.  653 

tained  by  a  rail  carrier,  is  of  advantage  to  the  couven- 
ience  and  comnieree  of  the  people,  is  being  operated  in 
the  interest  of  (lie  public  and  the  continuance  of  such 
service  will  not  exclude,  ])revent  nor  reduce  competi- 
tion on  tlie  watei-  route,  the  Commission  is  authorized, 
under  llic  statute,  to  extend  the  time  during  whi(;h  such 
service  by  watei-  may  contiiiut'  to  be  opciatiMl  b\-  a  coin- 
mon  carrier  by  railroad.''" 

§  373.  Commission  may  Prescribe  the  Forms  of 
all  Schedules  of  Rates  and  Charges.  The  Interstate 
Commerce  Commission  is  authorized  to  determine  and 
prescribe  the  form  in  which  tiie  schedules  required  by 
Section  6,  to  be  kei)t  open  to  public  inspection,  shall  be 
prepared  and  arranged,  and  is  authorized  to  change  the 
form  from  time  to  time.  No  changes  may  be  made  in  t  he 
rates,  fares  and  charges  of  an\'  common  carrier  or  any 
joint  rates,  fares  and  charges  which  shall  have  been  filed 
and  publisluHl  by  any  common  carrier  except  after  thirtv 
days  notice  to  the  Commission.  But  the  Commission 
may,  however,  in  its  discretion  and  for  good  cause  shown, 
allow  changes  in  such  rates,  fares  and  charges  upon  less 
than  the  thirty  days    notice  required." 

§  374.  Charges  by  Shippers  against  Carriers  for 
Services  Connected  with  Transportation  under  Control 
of  Commission.  AVhen  a  shipper  of  freight  transported 
in  interstate  or  foreign  commerce  and  subject  to  the 
Interstate  Commerce  Act,  directly  or  indirectly  renders 
any  service  connected  with  such  transportation,  or  fur- 
nishes any  instrumentality  used  therein,  the  Commission 
nuiy,  after  hearing  on  a  complaint  or  on  its  own  initia- 

50.        Central      Vermont      Boat  C.  C.  432;    Ocean  S.  S.  Co.  of  Sa- 

Lines,  40   I.  C.  C.   589;     Delaware  vannah,    37    I.    C.    C.    422;     In    re 

&  H.  Boat  Lines,  40  I.  C.  C.  297;  Steamer  Lines  on  Chesapeake  Bay 

Maine   Central   Boat   Lines,   40   L  and   Tributaries,  35  I.  c.  C.   692- 

C.    C.    272;     Ashtabula-Port    Mait-  In  re  Southern  P.  Co.,  ownership 

land  Car  Fare  Service,  40  I.  C.  C.  of  Oil    Steamers.   34   I.   c.   C.   77; 

143;    Southern  P.  Co's  ownership  Lake     Line     Applications     under 

of  Oil  Steamers,  37   I.  C.  C.   52S;  Panama  Canal  Act,  33  I.  C.  C.  G99. 
Peninsular   &   O.   S.    S.    Co.,    37    I.  f)!.  Chapter    13,    supra. 


654 


Duties   to   Interstate   Shippers. 


[§  374 


tive,  determine  what  shall  be  a  reasonable  charge  as 
the  maximum  to  be  paid  by  a  carrier  for  the  service 
so  rendered,  or  for  the  use  oi  the  instrumentality  so 
furnished."     The  Commission  is  authorized   to  fix  the 


52.  Interstate  Commerce  Com- 
mission V.  Atchison,  T.  &  S.  F. 
R.  Co.,  234  U.  S.  294,  58  L.  Ed. 
1319,  34  Sup.  Ct.  814;  United 
States  V.  Louisiana  &  P.  R.  Co., 
234  U.  S.  1,  58  L.  Ed.  1185,  34 
Sup.  Ct.  741;  Atchison,  T.  &  S. 
F.  R.  Co.  V.  United  States,  232 
U.  S.  199,  58  L.  Ed.  568,  34  Sup. 
Ct.  291;  United  States  v.  Balti- 
more &  O.  R.  Co.,  231  U.  S.  274, 
58  L.  Ed.  218,  34  Sup.  Ct.  75; 
Mitchell  Coal  &  Coke  Co.  v.  Penn- 
sylvania R.  Co.,  230  U.  S.  247,  57 
L.  Ed.  1472,  33  Sup.  Ct.  916;  Un- 
ion Pac.  R.  Co.  V.  Updike  Grain 
Co.,  222  U.  S.  215,  56  L.  Ed.  171, 
32  Sup.  Ct.  39;  Interstate  Com- 
merce Commission  v.  Diflenbaugh, 
222  U.  S.  42,  56  L.  Ed.  83,  32  Sup. 
Ct.  22;  Interstate  Commerce  Com- 
mission V.  Stickney,  215  U.  S. 
98,  54  L.  Ed.  112,  30  Sup.  Ct.  66; 
Chicago  &  A.  R.  Co.  v.  United 
States,  212  U.  S.  563,  53  L.  Ed. 
653,  29  Sup.  Ct.  689;  Louisiana  & 
P.  Ry.  Co.  V.  United  States,  209 
Fed.  244;  Wisconsin  Cent.  R.  Co. 
V.  United  States,  94  C.  C.  A.  444, 
169  Fed.  76;  Ohio  Coal  Co.  v. 
Whitcomb,  59  C.  C.  A.  487,  123 
Fed.  359;  Union  Lumber  Co.  v. 
Gulf,  C.  &  S.  F.  Ry.  Co.,  37  I.  C. 
C.  225;  Felin  &  Co.  v.  Philadel- 
phia &  R.  Ry.  Co.,  37  I.  C.  C.  231; 
In  re  Allowances  on  Anthracite 
Coal,  36  I.  C.  C.  164;  In  re  ad- 
vances Car-spotting  Charges,  34  I. 
C.  C.  609;  Second  Industrial  Rys. 
Case,  34  I.  C.  C.  596;  Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  Kansas  City 
Stock  Yards  Co.,  33  I.  C.  C.  92; 
Best  Co.  V.   Great  N.  Ry.   Co.,  33 


I.  C.  C.  1;  New  York  Dock  Ry. 
Co.  V  Baltimore  &  O.  R.  Co.,  32 
I.  C.  C.  568;  Inman,  Akers  &  In- 
man  v.  Atlantic  Coast  Line  R. 
Co.,  22  I.  C.  C.  146;  Colonial  Salt 
Co.  V.  Chicago,  B.  &  Q.  R.  Co., 
31  I.  C.  C.  559;  Industrial  Rys. 
Case,  2«  I.  C.  C.  212;  Manufactur- 
ers' Ry.  Co.  V.  St.  Louis,  I.  M. 
&  S.  Ry.  Co.,  28  I.  C.  C.  93;  South- 
wpstcrn  Missouri  Millers  Club  v. 
St.  Louis  &  S.  F.  R.  Co.,  26  I.  C. 
C.  245;  Traffic  Bureau  of  St. 
Louis  v.  Chicago,  B.  &  Q.  R.  Co., 
22  I.  C.  C.  496;  Suffern  Grain  Co. 
V.  Illinois  Cent.  R.  Co.,  22  I.  C. 
C.  178;  Sterling  &  Son  Co.  v. 
Michigan  C.  R.  Co.,  21  I.  C.  C. 
451;  International  Salt  Co.  of  Il- 
linois V.  Genesee  &  W.  R.  Co.,  LO 
I.  C.  C.  530;  Industrial  Lumber 
Co.  V.  St.  Louis  W.  &  G.  Ry. 
Co.,  19  I.  C.  C.  50;  Fathauer 
Co.  V.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.,  18  I.  C.  C.  517;  Crane  Iron 
Works  V.  Central  R.  Co.  of  New 
Jersey,  17  I.  C.  C.  514;  Star 
G^-ain  &  Lumber  Co.  v.  Atchison. 
T.  &  S.  F.  Ry.  Co.,  17  I.  C.  C. 
338;  Crane  R.  Co.  v.  Philadelphia 
&  R.  Ry.  Co.,  15  I.  C.  C.  248;  Kaye 
&  Carter  Lumber  Co.  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  14  I.  C.  C. 
G04;  So]va\  Process  Co.  v.  De'.<\- 
ware,  L.  &.  W.  R.  Co.,  14  I.  C.  C. 
246;  General  Elec.  Co.  v.  New 
York,  C.  &  H.  R.  Co.,  14  I.  C.  C 
237;  National  Wholesale  Lum- 
ber Dealers  Ass'n  v.  Atlantic 
Coast  Line  R.  Co.,  14  I.  C.  C.  154; 
Topeka  Banana  Dealers  Ass'n  v. 
St.  Louis  &  S.  F.  R.  Co.,  13  I.  C. 
r.  620;    In  re  Elevator  Allowances 


§  376J  The     Commerce    Commission.  655 

rnaxiniiiin  eliar^c  by  ai)})ropriat('  order  which  shall  have 
the  same  f'oree  and  effect  and  he  enforced  as  other  orders 
provided   hy  the  statute. 

§  375.  Commission  may  Formulate  Regulations  for 
the  Transportation  of  Explosives.  The  Commission  is 
authorized  by  statute  to  formulate  rej^-ulations  for  the 
safe  trans])ortation  of  explosives,  which  shall  be  binding 
upon  all  common  carriers  engaged  in  interstate  or  for- 
eign commerce  and  transporting  explosives  by  land.  The 
Commission  may  also,  upon  its  own  motion,  or  upon 
application  by  any  interested  party,  make  changes  or 
modifications  in  such  regulations.  These  regulations,  as 
well  as  all  changes  or  modifications  thereof,  shall  take 
effect  ninety  days  after  their  formulation  and  publica- 
tion l)y  tlie  Commission,  and  shall  be  in  effect  until 
reversed,  set  aside  or  modified." 

§  376.  Switch  Connections  may  be  Ordered  by  the 
Commission,  When.  Upon  the  application  of  any  later- 
al, branch  line  of  railroad,  or  of  any  shipper  tendering 
interstate  traffic  for  tran.spoi-tation,  it  becomes  the  duty 
of  any  common  carrier  subject  to  the  statute  to  construct 
and  ojierate  upon  reasonable  terms  a  switch  connection 
with  any  such  lateral,  branch  line  of  railroad  or  private 
side  track  which  may  be  constructed  to  connect  with 
its  railroad,  where  such  connection  is  reasonably  practi- 
cable, can  be  put  in  with  safety  and  will  furnish  suf- 
ficient business  to  justify  its  construction  and  main- 
tenance. ITpon  the  construction  of  the  switching  con- 
nection the  carrier  is  required  to  furnish  cars  for  the 
movement  of  such  traffic  to  the  best  of  its  ability  with- 
out discrimination  in  favor  of  or  against  any  such  ship- 
per. If  any  such  carrier  shall  fail  to  install  and  operate 
any  such  switch  or  connection,  on  application  therefor 

by  Union   P.   Ry.  Co.,   12   I.   C.   C.  v.  Louisville  i   N.  R.  Co.,   1    I.  C. 

85;     Central  Yellow  Pine  Ass'n  v.  C.  503. 

Illinois   Cent.   R.   Co.,   10   I.   C.   C.  53.      Transportation     of     Explo- 

505;    Shamberg  v.  Delaware,  L.  &  sives  Act,  35  Stat,  at  L.  1134.  Ap- 

W.   R.   Co.,   4    I.   C.   C.   630;     Rice  pendix  P.  iufra. 


656  Duties   to   Interstate   Shippers.  [§  376 

in  writing  by  any  shipper  or  owner  of  a  lateral,  branch 
line  of  railroad,  such  shipper  or  owner  of  such  lateral, 
branch  line  of  railroad,  may  make  complaint  to  the  Com- 
mission, and  the  Commission  is  authorized  to  hear  and 
investigate  the  same  and  to  determine  as  to  the  safety 
and  practicability  of  the  connection  and  the  justification 
and  reasonable  compensation  therefor.  The  Commission 
may  make  an  order  directing  any  common  carrier  to 
comply  with  the  above  requirements  and  such  order 
shall  be  enforced  as  provided  by  statute  for  the  enforce- 
ment of  all  other  orders  by  the  Commission,  other  than 
orders  for  the  payment  of  money.'* 

§  377.    Forms  of  all  Accounts,  Records  and  Memo- 
randa of  Carriers   Subject  to   Control  of   Commission. 

The  Commission  is  authorized  to  prescribe  the  forms  of 
any  and  all  accounts,  records  and  memoranda  to  be 
kept  by  common  carriers  subject  to  its  control,  including 
the  accounts,  records  and  memoranda  of  tlie  movement 
of  traffic  as  well  as  the  receipts,  and  expenditures  of 
moneys.  When  so  prescribed  by  the  Commission,  it 
shall  be  unlawful  for  any  carrier  to  keep  any  other  ac- 
counts, records  or  memoranda  than  those  approved  by 
the  Commission.  The  Commission  shall,  at  all  times, 
have  access  to  the  accounts,  records  and  memoranda 
kept  by  the  carriers,  and  it  may  employ  special  agents 
or  examiners  who  shall  have  authority  under  the  order 
of  the  Commission,  to  inspect  and  examine  any  and  all 
accounts,  records  and  memoranda  kept  by  the  carriers 

54.     United  States  v.  Baltimore  I.   C.   C.   183;     Cincinnati   &  C.   T. 

&   O.   S.  W.  R.  Co.,  226   U.  S.   14,  Co.  v.  Baltimore  &  S.  W.   R.  Co., 

57  L.  Ed.  104,  33  Sup.  Ct.  5;     In-  20   I.   C.  C.   486;     Imperial   Wheel 

terstate  Commerce  Commission  v.  Co.   v.   St.   Louis,   I.   M.   &   S.   Ry. 

Northern    Pac.    R.    Co.,    216   U.    S.  Co.,  20  I.  C.  C.  56;    Winter's  Me- 

538,  54  L.  Ed.  608,  30  Sup.  Ct.  417;  tallic  Paint  Co.  v.  Chicago,  M.   & 

Huerfano  Coal  Co.  v.  Colorado  &  St.    P.    Ry.    Co.,    16    I.    C.    C.    587; 

S.  E.  R.  Co.,  28  I.  C.  C.  502;   Mor-  Rahway  V.  R.  Co.  v.  Delaware,  L. 

ris  Iron  Co.' v.  Baltimore  &  O.  R.  &  W.  R.  Co.,  14  T.  C.  C  191;   We- 

Co.,  26  I.  C.  C.  240;  Ralston  Town-  lectka  Light  &  Water  Co.  v.  Fort 

site    Co.   V.    Missouri    P.   Ry.    Co.,  Smith    &   W.   R.   Co.,   12    I.   C.   C. 

22   I.  C.   C.  354;     Ridgewood  Coal  503:     McRae  Terminal  Ry.  Co.  v. 

Co.    V.    Lehigh   Valley   R.    Co.,   21  Southern  Ry.  Co.,  12  I.  C.  C.  270. 


§  378]  The     Commerce     Commission.  657 

subject  to  federal  contiol.  Tii  case  of  failure  or  refusal 
on  the  i)art  of  any  canicr,  receiver  or  trustee  of  a  rail- 
road to  keej)  such  accounts,  iccords  and  memoranda  on 
the  books  and  in  the  manner  pi-escribed  by  the  Commis- 
sion or  to  sul)init  such  accounts,  records  and  memoranda 
as  are  kept  to  the  inspection  of  tlie  Commission,  or  any 
of  its  authorized  a.t^-ents  or  examiners,  sucli  carrier,  re- 
ceiver, or  trustee,  shall  forfeit  to  the  United  States  the 
sum  of  Five  Hundred  Dollars  for  each  offense  and  for 
each  and  every  day's  continuance  of  such  offense,  such 
forfeitures  to  be  recoverable  in  the  same  manner  as  othei- 
forfeitures  provided  in  the  statute.  x\ny  examiner  who 
divulges  any  fact  or  information  which  may  come  to 
his  knowledge  during  the  course  of  the  examination  of 
the  books,  records  and  accounts  of  any  carrier  excejit 
in  so  far  as  he  may  be  directed  by  the  Commission  or 
by  a  court  or  judge  thereof,  sliall  be  su])ject,  upon  con- 
viction in  any  court  of  the  United  States  of  competent 
jurisdiction,  to  a  fine  of  not  more  than  Five  Thousand 
Dollars  or  imprisonment  for  a  term  not  exceeding  two 
years  or  both." 

§  378.  Power  of  Commission  over  Rail  Carriers 
Discriminating  against  Steamship  Lines  to  Foreign 
Countries.  If  a  rail  carrier  subject  to  federal  control 
enters  into  arrangements  with  any  water  carrier  oper- 
ating from  a  port  in  the  XTnited  States  to  a  foreign 
country  through  the  Panama  Canal  or  otherwise,  for 
the  handling  of  through  business  between  interior  points 
in  the  United  States  and  such  foreign  country,  the  Com- 
mission has  the  power,  under  the  statute,  to  require  such 
lail  carrier  to  enter  into  similar  arrangements  with  any 
other  lines  of  steamshii)s  o])erating  from  the  same  port 
to  the  same  foreign  country.  Such  orders,  however, 
cannot  be  made  by  the  Commission  except  upon  a  formal 
complaint  or  in  proceedings  instituted  by  the  Commis- 
sion of  its  own  motion  and  after  a  full  hearing.^" 

55.      Section    20    of    the    Act    to  56.    Section  fi  of  the  Act  to  Res;- 

Regulate  Commerce,  Appendix  A,      ulate  Commerce,  Appendix  A,  in- 
infra.  fra. 

1    Control    rarrlers    42 


fc'58  Duties   to   Interstate   Shippers.  [§  379 

§  379.  Rail  Rates  Reduced  to  Meet  Water  Competi- 
tion may  not  be  Raised  without  Permission  of  Com- 
mission. Wlienever  a  rail  carrier  operating  in  com- 
petition with  a  water  carrier,  reduces  the  rates  for  the 
transportation  of  any  specie  of  freight  to  or  from  a  com- 
petitive point,  such  rates  cannot  be  increased  thereafter 
by  tlie  carrier  unless  the  Interstate  Commerce  Commis- 
sion shall  find  after  a  hearing  that  the  proposed  increase 
rests  upon  changed  conditions  other  than  the  elimination 
of  water  competition." 

§  380.  Physical  Connection  between  Line  of  Rail 
Carriers  and  Water  Carriers  may  be  Established  by 
Commission.  When  property  may  be  or  is  transported 
by  common  carriers  from  one  point  to  another  in  the 
United  States  by  cail  and  water,  the  transportation  not 
being  entirely  within  the  limits  of  a  single  state,  the 
Commission  has  jurisdiction  of  such  transportation  and 
of  the  rail  and  water  carriers  engaged  therein,  to  es- 
tablish physical  connections  between  the  line  of  a  rail 
carrier  and  the  dock  of  a  water  carrier  by  directing  the 
rail  carrier  to  make  suitable  connections  between  its 
line  and  the  tracks  which  may  have  been  constructed 
from  the  dock  to  its  right  of  way,  or  by  directing  either 
or  both  the  rail  and  water  carrier,  individually  or  in 
connection  with  one  another,  to  construct  and  connect 
with  the  lines  of  the  rail  carrier  a  spur  track  to  the 
dock.  Such  connection  cannot,  however,  be  required  un- 
less it  is  reasonably  practicable,  can  be  made  with  safety 
to  the  public,  and  the  amount  of  business  is  sufficient 
to  justify  the  outlay.  The  Commission  has  full  authori- 
ty to  determine  the  terms  and  conditions  upon  which 
these  connecting  tracks,  when  constructed,  shall  be 
operated,  and  it  may,  either  in  the  construction  or  the 
operation  of  such  tracks,  determine  what  sum  shall  be 
paid  to  or  by  either  carrier.     The  foregoing  provisions 

57.      Section    4    of    the    Act    to       infra.     This  provision  was  insert- 
Regulate   Commerce,  Appendix  A,       od  by  amendment  in  1910. 


^  382]  The   Commebce   Commission.  G59 

extend  to  cases  where  the  dock  is  owned  by  otlier  parties 
tlian  the  carrier  involved/*' 

§  381.  Maximum  Proportional  Rates  by  Rail  to  and 
From  Ports  May  be  Established  by  Commission,  When. 
When  projK'rty  may  be  or  is  transported  from  one  point 
to  another  in  the  United  States  by  rail  and  water,  the 
transportation  l)eing  by  common  carriers  and  not  en- 
tirely within  the  limits  of  a  single  state,  the  Commission 
has  jurisdiction  of  such  transportation  and  of  such  car- 
riers, both  by  rail  and  by  water,  which  participate  there- 
in, to  establish  maximum  proportional  rates  by  rail  to 
and  from  the  ports  to  which  such  traffic  is  brought,  or 
from  which  it  is  taken  by  the  water  carrier,  and  may 
determine  to  what  traffic  and  in  connection  with  what 
vessels  and  upon  what  terms  and  conditions,  such  rates 
shall  apply.  By  i)roportional  rates  are  meant  those 
which  differ  from  the  corresponding  local  rates  to  and 
•  from  the  port  and  which  apply  to  traffic  which  has  been 
brought  to  the  port  or  is  carried  from  the  port  by  a 
common  carrier  by  water.  An  order  of  the  Commission 
establishing  such  maximum  proportional  rates  can  be 
made  only  upon  a  formal  complaint,  or  in  a  proceeding 
instituted  by  the  Commission  of  its  own  motion,  and 
after  a  full  hearing.^" 

§  382.  Commission  Without  Jurisdiction  to  Regu- 
late Charges  in  Connection  with  28-Hour  Livestock 
Law.  The  Act  of  June  29,  1906''''  prohibits  carriers, 
over  whose  lines  animals  shall  be  conveyed,  from  con- 
fining the  same  in  cars  for  a  period  longer  that  28  con- 
secutive hours,  36  hours  in  excepted  cases,  without  un- 
loading them  into  properly  equipped  pens  for  rest,  water 
and  feed,  for  a  period  of  at  least  5  consecutive  hours, 

58.  Section  6  of  the  Act  to  Reg-  infra;  Charleston  &  N.  S.  S.  Co 
ulate  Commerce,  Appendix  A,  in-  v.  Chesapealie  &  O.  Ry.  Co.,  40  I. 
fra;    Indiana  Transp.  Co.  v.  Grand       C.  C.  382. 

Rapids,  H.  &  C.  Ry.  Co..  39   I.  C.  60.     34   Stat,   at   L,   607,   known 

C.  757.  as  the  Federal  28-Hour  Livestock 

59.  Section    6    of    the    Act    to  Law.     Appendix  L,  infra. 
Regulate  Commerce,   Appendix  A, 


660  Duties   to   Interstate   Shippers.  [§  382 

and  also  provides  that  the  animals  shall  be  properly 
fed  and  watered  during  such  rest,  either  by  the  owner 
or  person  having  custody  thereof,  or,  in  case  of  his  de- 
fault in  SQ  doing,  then  by  the  railroad  transporting  the 
same,  at  the  reasonable  expense  of  the  owner.  This 
statute  does  not  vest  in  tlie  Commission  authority  to 
enforce  its  provisions.  As  the  Commission  possesses 
only  such  powers  as  are  expressly  conferred  upon  it  by 
statute,  it  has  no  authority  to  pass  upon  the  reasonable- 
ness of  a  charge  collected  by  a  carrier  from  a  shipper 
for  feeding  and  watering  a  carload  of  animals  in  com- 
pliance with  the  28-Hour  Law."^ 

§  383.  Commission  Required  to  Make  Annual  Re- 
ports to  Congress.  The  Commission  is  required  to  make 
and  transmit  to  Congress  an  annual  report  on  or  before 
the  iirst  day  of  December  in  each  year,  which  must  con- 
tain such  information  and  data  collected  by  the  Com- 
mission as  may  be  considered  of  value  in  the  deter-, 
mination  of  questions  connected  with  the  regulation  of 
commerce,  together  with  such  recommendations  as  to 
additional  legislation  relating  thereto  as  the  Commis- 
sion may  deem  necessary.  The  report  must  also  contain 
the  names  and  compensation  of  the  persons  employed 
by  the  Commissi  on. "- 

§  384.  Rules  and  Regulations  for  Inspection  of 
Locomotive  Boilers  Controlled  by  Commission.  Common 
carriers  by  railroad  engaged  in  interstate  or  foreign  com- 
merce are  required  to  promulgate  rules  and  instructions 
for  the  inspection  of  boilers  of  locomotive  engines  used 
upon  their  railroads.  After  hearing  and  approval  by 
the  Commission,  such  rules  and  instructions,  with  such 
modifications  as  the  Commission  may  reciuire,  shall  be- 
come  obligatory   upon   such    carriers.      If   any    carrier 

61.     Pacific  Coast  Beef  &  Provi-  62.      Section    21    of    the    Act    to 

sion  Co.  V.  Oregon  Short  Line  R.       Rtgulate  Commerce,  Appendix  A, 

Co.,    46    I.    C.    C.    ;     Streever       infra. 

Lumber  Co.  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  34  L  C.  C.  1. 


§  386]  The     Commerce     Commission.  GGl 

shall  fail  to  lile  such  rules  and  instructions  with  tiie 
chief  inspector  of  the  Commission,  he  may  prepare  rules 
and  instructions  to  be  obsei-v^ed  by  the  carrier,  which, 
upon  ai)proval  by  tlie  Commission,  sliall  be  obli«<atory 
after  a  copy  thereof  is  served  upon  the  president,  gener- 
al manager  or  general  sui)erintendent  of  such  carrier. 
No  rule  or  regulation  sliall  l)e  changed  until  the  same 
shall  have  been  (iled  with  and  appi'oved  by  the  Com- 
mission. The  statute  also  provides  for  an  appeal  to  tlie 
Commission  from  the  decision  of  the  chief  iusjiectcjr 
upon  the  (|ues1i()ii  whether  any  locomotive  is  ecjuipijed 
as  recpiired  by  law  or  is  in  serviceable  condition.*'^ 

§  385.  Carriers  Required  to  Make  Monthly  Reports 
of  all  Accidents  to  Commission.  Under  such  rules  and 
regulations  that  may  be  prescribed  by  the  Commission, 
every  common  carrier  engaged  in  interstate  or  foreign 
commerce  by  railroad,  through  its  general  manager, 
superintendent  or  other  proper  officer,  is  required  to 
make  to  the  Commission  at  its  office  in  Washington,  D. 
C,  a  monthly  report,  under  oath,  of  all  collisions,  de- 
railments or  other  accidents  resulting  in  injury  to  per- 
sons, equipment  or  roadbed  arising  from  the  operation 
of  a  railroad.  Such  report  shall  state  the  nature  and 
cause  of  the  accident  and  the  circumstances  connected 
therewith.  The  Commission  is  authoi'ized  to  prescribe 
for  all  carriers  a  method  and  form  for  making  such 
reports.®* 

§  386.  Commission  May  Require  Annual  Reports 
from  all  Common  Carriers  Subject  to  Statute.  The 
Commission  is  authorized  to  compel  all  common  carriers 
subject  to  the  act  and  owners  of  all  railroads  engaged 
ill  interstate  commerce  as  defined  in  the  statute,  to  tile 
with  it  aiiiiiial  reports,  to  prescribe  the  manner  in  which 
such  reports  shall  be  made,  and  to  require  from  such 
carriers   specific   answers  to   all    questions   upon    which 

63.      Boiler    Inspection    Act,    36  G4.      Accident    Report    Act,    36 

Stat,  at  L.  913,  Appendix  J,  infra.      Stat,  at  L.  350,  Appendix  N,  infra. 


(\(]-  Duties   to    Interstate    Shippers.  [§  386 

the  Commission  may  need  information.'"'^'  Such  annnal 
reports  shall  show  in  detail  the  amount  of  capital  stock 
issued,  the  amounts  paid  therefor  and  the  manner  of 
]iaynient  for  the  same;  the  dividends  paid,  the  surplus 
fund,  if  any,  and  the  number  of  stockholders;  the  fund- 
ed and  floating-  debts  and  the  interest  paid  thereon;  the 
cost  and  value  of  the  carrier's  property,  franchises  and 
ec[uipments;  the  number  of  emplo^^ees  and  the  salaries 
paid  each  class;  the  amounts  expended  for  improvements 
each  year,  how  expended,  and  the  character  of  such  im- 
provements; the  earnings  and  receipts  from  each  branch 
of  business  and  from  all  sources;  the  operating  and 
other  expenses;  the  balances  of  profit  and  loss;  and  a 
complete  exhibit  of  the  financial  operations  of  the  car- 
rier each  year,  including  an  annual  l)alance  sheet.  Such 
reports  must  also  contain  such  information  in  relation 
to  rates  or  regulations  concerning  fares  or  freights,  or 
agreements,  arrangements,  or  contracts  affecting  the 
same  as  the  Commission  may  require.  The  Commission 
is  also  authorized  to  prescribe  a  period  of  time  within 
which  all  common  carriers  subject  to  the  statute  shall 
have,  as  near  as  may  be,  a  uniform  system  of  accounts, 
and  the  manner  in  which  such  accounts  shall  be  kept.^*^ 

§  387.  Power  of  Commission  over  Safety  Applian- 
ces on  Railroad  Cars  and  Engines.  The  authority  of 
the  Commission  over  the  facilities  and  instrumentalities 
of  interstate  transportation  is  not  circumscribed  and 
limited  by  the  provisions  of  the  Act  to  Regulate  Inter- 
state Commerce.  Under  the  safety  appliance  laws  and 
amendments  passed  from  time  to  time,  the  Commission 
has  extensive  powers  over  the  safety  appliances  used 
and  maintained  on  both  freight  and  passenger  cars  and 

65.     United  States  v.  Louisville  L.  Ed.  729,  32  Sup.  Ct    436;    Unit- 

ft  N.  R.  Co.,  236  U.  S.  ?18,  59  L.  ed  States  v.  Nashville,  C.  &  St.  L. 

Ed.  598,  35  Sup.  Ct.  363;    Kansas  Ry.,  217  Fed.  254:     In  re  St.  Paul 

City   Southern    Ry.   Co.   v.    United  &  Puget  Sound  Accounts,  29  I.  C. 

States,    231    U.    S.    423,    58    L.    Ed.  C.   508. 

296,    34    Sup.    Ct.    125;    Interstate  66.      Section    20    of    the    Act    to 

Commerce    Commission    v.    Good-  Regulate  Con  merce,  Appendix  A, 

rich  Transit  Co.,  224  U.  S.  194,  56  infra. 


§  388]  Tjie     Commerce     Commission.  6G3 

engines  in  use  on  interstate  railroads.  Its  ]iowers  un- 
der these  statutes  are  often  broader  tlian  under  tlie 
Interstate  Commerce  Act;  for  they  extend  to  the  appli- 
ances on  cars  used  solely  in  intrastate  commerce  if  used 
on  a  highway  of  interstate  commerce.  The  sjjecific 
powers  of  the  Commission  over  these  instrumentalities 
ai'c  elsewhere  considered  and  explained."^ 

§  388.  Commission  Empowered  to  Investigate  Rail- 
road Accidents  and  to  Make  Reports.  All  collisions, 
derailnicnts  or  oilier  accidents  resulting  in  .serious  injury 
to  peison  or  ])roperty  occurring  on  the  line  of  any  com- 
mon carrier  hy  railroad  engaged  in  interstate  or  foreign 
commerce,  may  be  investigated  by  the  Commission.  To 
facilitate  such  investigations  the  Conmiission,  or  any 
impartial  investigator  authorized  by  it,  may  investigate 
all  the  attending  facts,  conditions  and  circumstances, 
and,  for  that  ))ur])ose,  may  subpoena  witnesses,  admin- 
ister oaths,  take  testimony,  and  recpiire  the  production 
of  books,  papers,  orders,  memoranda,  exhibits  and  other 
evidence,  and  shall  be  ])rovided  by  the  interestea  cai- 
rier  with  all  reasonable  facilities.  When  it  deems  it 
to  the  public  interest,  the  Commission  shall  make  re- 
ports of  such  investigations,  stating  the  cause,  togethei- 
with  such  recommendations  as  it  deems  ])roper.  Such 
reports  shall  be  made  i)nblic  in  sucli  manner  as  tht 
Commission  deems  pro])er,  l)ut  shall  not  be  admitted  as 
evidence  or  used  for  any  pur])ose  in  any  suit  or  action 
for  damages  occurring  out  of  any  matter  mentioned 
in  the  report  or  investigation."" 

67.  Part  IV,  infra.  68.      Accident    Report    Act,    36 

Stat,  at  L.  S.'iO.  Appendix  N.  infra. 


Sec. 

^91. 

Sec. 

392. 

Sec. 

393. 

Sec. 

394. 

Sec. 

395. 

CHAPTER  XX 

Proc'Eduke  Before  Interstate  Commerce  Commission. 

Sec.  389.    Who  May  Make  Complaints  to  the  Commission. 

Sec.  390.    Absence  of  Direct  Damage   to   Complainant   not   Ground   for 
Dismissal  of  Complaint. 

Power  of  Commission  to  Proceed  when  Acting  upon  its 
Own  Motion. 

Power  of  Commission  to  Formulate  Rules  of  Procedure. 
Rules  Governing  Complaints  Filed   Before  Commission. 
Essentials   of  Complaints  "When   Reparation   is   Sought. 
Formal  Claims  for  Reparation  Based  upon  Findings  of  Com- 
mission 

Sec.  396.    Specifications  of  Complaints,  Answers,  Briefs,  Petitions,  Ap- 
plications, etc. 

Sec.  397.    Applications  to  Carriers  Under  Fourth  Section. 

Sec.  398.    Suspensions  of  Tariff  Schedules  under  Section  15. 

Sec.  399.    Requirements  of  the  Rules  as  to  Answers  Filed  Before  Com- 
mission. 

Sec    400.    Method  of  Serving  Papers. 

Sec.  401.    Amendments  to  Complaints  or  Answers  in   Proceedings  Be- 
fore Commission. 

Sec.  402.    Commission  May  Order  Testimony  to  be  Taken  by  Deposition 
at  any  Stage  of  Proceedings. 
Method  of  Hearing  Before  the  Commission. 
May  Hold  Hearings  or  Prosecute  Inquiries  Anywhere  in  the 
United  States. 

Continuances.  Extensions  of  Time  and  Stipulations. 
Commission  may  Compel  Attendance  and  Testimony  of  Wit- 
nesses and  Production  of  Papers. 

Schedules,  Contracts  and  Annual  Reports  Filed  with  Com- 
mission Public  Records  Receivable  as  Prima  Facie  Evidence, 
When. 

Transcripts  of  Testimony  to  be  Furnished  Complainant  and 
Defendant. 

Rules  Governing  Filing  of  Briefs. 

Orders    of    the    Commission — Enforcement,    Service    of,    and 
Duties  of  Carriers  Thereunder. 
Sec.  411.    Applications    for   Rehearing   or   Reopening   before   the   Com- 
mission— Procedure. 
Sec.  412.    Employment  of  Attorneys  to  Aid  Commission  Authorized. 

§  389.  Who  may  Make  Complaints  to  the  Commis- 
sion. The  statute  provides  that  any  person,  firm,  cor- 
poration, company,  association,  or  any  mercantile,  agri- 

(664) 


Sec. 

403. 

Sec. 

404. 

Sec. 

405. 

Sec. 

40fi. 

Sec. 

407. 

Sec. 

408. 

Sec. 

409. 

Sec. 

410. 

§  389]         Pkoceduke    before    Commission.  G65 

<-iiltiiral,   or   luanufaeturing    society    or   otlier   organiza- 
tion, or  any  body  politic  or  municipal  corporation,  rail- 
road coinniissioner  or  railroad  commission  of  any  state 
or  territory,  or  any  common  carrier,  complaining  of  any- 
thing done  or  omitted  to  be  done  by  any  common  car- 
rier subject  to  the  provisions  of  the  Act,  in  contraven- 
tion of  the  provisions  thereof,  may  ap])]y  to  the  Com- 
mission by  petition  which  shall  briefly  state  the  facts. 
Thereupon  the  statute  provides  tliat  a  statement  of  the 
complaint  thus  made  shall  be  forwanh'd  l)y  the  Commij^- 
sion  to  such  common  carrier,  who  shall  be  called  upon 
to  satisfy  the  complaint,  or  to  answer  the  same  in  writ- 
ing, within  a  reasonable  time,  to  be  si)ecified  by  the  Com- 
mission.    If  such  common  carrier  within  the  time  speci- 
fied   shall   make   reparation   for   tlie    injury    alleged   to 
have  been  done,  it  shall  be  relieved  of  liability  to  the 
complainant   only   for  the   particular   violation   of   law 
thus  complained  of.    If  the  carrier  shall  not  satisfy  the 
complaint  within  the  time  specified,  or  there  shall  ap- 
pear to  be  any  reasonable  ground  for  investigating  the 
complaint,  it   shall  be  the   duty   of  the   Commission    to 
investigate  the  matter  complained  of  in   such   manner 
and  by  such  means  as  it  shall  deem  proper.^ 

The  rules  of  practice  before  the  Commission  pro- 
vide that  any  complainant  may  appear  and  be  heard 
in  person  or  by  attorney;  that  two  or  more  com- 
plainants may  join  in  one  complaint  against  two  or 
more  defendants,  if  the  complaint  involves  substan- 
tially the  same  principle,  subject,  or  state  of  facts; 
that  if  a  complaint  relates  to  matters  in  which  two 
or  more  carriers,  engaged  in  transportation  by  con- 
tinuous carriage  or  shipment  are  interested,  the  sev- 
eral carriers  participating  in  such  carriage  or  shi]-)- 
ments,  are  necessary  parties  defendant;  that  if  a 
complaint  relates  to  rates,  regulations  or  practices  of 
carriers  operating  different  lines,  and  the  object  of 
the  proceeding  is  to  secure  correction  of  such  rates, 
regulations  or  practices  on  each   of  said  lines,  all  the 

1.      Section    13    of    the    Act    to      Regulate  Commerce. 


666  Duties   to   Interstate   Shippers.  [§  389 

carriers  operating  siicli  lines  should  be  made  defend- 
ants; that  if  a  complaint  relates  to  provisions  of  a 
classification,  it  will  ordinarily  be  sufficient  to  name 
as  defendants  the  carriers  permitting  one  or  more 
through  routes  between  the  respective  points  of  origin 
and  destination,  and  that  if  the  line  of  a  carrier  is  oper- 
ated by  a  receiver  or  trustee,  both  the  carrier  and  its 
receiver  or  trustee  must  be  made  defendants  in  cases 
involving  transportation  over  such  line.^ 

§  390.  Absence  of  Direct  Damage  to  Complainant 
not  Ground  for  Dismissal  of  Complaint.  The  statute 
provides  that  no  complaint  shall  at  any  time  be  dismiss- 
ed because  of  the  absence  of  direct  damage  to  the  com- 
plainant.^ In  a  proceeding  before  the  Commission  by 
a  newspaper  owner  against  certain  coal-carrying  rail- 
roads, the  Commission  ordered  the  production  of  certain 
contracts  between  the  carriers  and  coal  operators.  It 
was  contended  in  a  suit  to  attack  the  order  that  the 
complainant  before  the  Commission  had  no  real  interest 
in  the  case  and  that  the  proceeding  should  be  dismissed. 
In  rejecting  this  contention,  the  court  said:*  "It  is 
urged  that  the  complainant  before  the  commission  did 
not  show  any  real  interest  in  the  case  brought,  and  that 
the  proceeding  should  for  that  reason  have  been  dis- 
missed. It  is  provided  in  the  act  to  regulate  commerce, 
sec.  13,  that  'any  person,  firm,  corporation,'  etc.,  com- 
plaining of  anything  done  or  omitted  to  be  done  by  any 
common  carrier  subject  to  the  provisions  of  this  act,  in 
contravention  of  the  provisions  thereof  may  apply  to 
said  commisson  by  petition,  etc.  And  certain  procedure 
is  provided  for — and  (said  commission)  'may  institute 
any  inquiry  on  its  own  motion  in  the  same  manner  and 
to  the  same  effect  as  though  complaint  had  been  made,' 
and  the  section  concludes:  ,  'No  complaint  shall  at  any 

2.  Rules  of  Practice,  Appendix  4.      Interstate    Commerce    Com- 
^    infra.                                                      mission  v.  Baird,  194  U.  S.  25,  48 

3.  Section  13  of  the  Act  to  Reg-      U  Ed.  860,  24  Sup.  Ct.  563. 
ulate  Commerce,  Appendix  A,  in- 
fra. 


<§  390]         Procedure    before    Commission.  667 

time  1)('  dismissed  Ijocause  of  tli<*  absf^nco  of  direet  dam- 
age to  tlie  complainant.'  In  face  of  tiiis  mandatory 
requirement  that  the  complaint  sliall  not  be  dismissed 
because  of  the  want  of  direct  damage  to  tlie  complain- 
ant, no  alternative  is  left  the  commis.siou  but  to  investi- 
gate the  complaint,  if  it  presents  matter  within  the  pur- 
view of  the  act  and  the  powers  granted  to  the  commis- 
sion. Pcfwer  is  conferred  upon  the  commission,  under 
section  12  of  the  act  as  amended  March  2,  1889,  and 
February  10,  1891  (3  U.  S.  Comp.  Stat,  of  1901,  p.  3162), 
to  inquire  into  the  management  of  the  business  of  all 
common  carriers  subject  to  the  provisions  of  the  act,  and 
to  keep  itself  informed  as  to  the  manner  and  method  in 
which  the  same  is  conducted,  with  the  right  to  obtain 
from  such  common  carriers  full  and  complete  informa- 
tion necessary  to  enable  the  commission  to  perform  the 
duties  and  carry  out  the  objects  for  which  it  was  created. 
In  making  the  orders  which  were  the  basis  of  the  appli- 
cation to  the  Circuit  Court  and  in  the  petition  filed  there- 
in it  is  set  forth  that  the  commission  at  the  time  when 
the  witnesses  refused  to  produce  the  contracts  required, 
was  engaged  *in  the  discharge  of  its  duty  to  execute 
and  enforce  the  provisions  of  the  act  to  regulate  com- 
merce and  in  the  exercise  of  its  authority  to  inquire  in- 
to the  business  of  common  carriers  subject  to  the  provi- 
sions of  the  act,  and  to  keep  itself  informed  as  to  the 
manner  and  method  in  which  said  business  is  conducted, 
and  to  obtain  from  said  common  carriers  full  and  com- 
plete information  necessary  to  enable  it  to  perform  tlu^ 
duties  and  carry  out  the  objects  for  which  it  was  created; 
and  your  petitioner  is  of  the  opinion  that  said  contracts 
are  not  only  material  and  relevant  to  the  issues  on  trial 
in  said  proceeding,  but  that  the  production  thereof  as 
recpiired  by  it,  as  aforesaid,  is  necessary  to  enable  your 
petitioner  to  discharge  its  duty  and  execute  and  enforce 
said  ]u-ovisions  of  said  act  to  regulate  commerce  and  to 
inform  your  petitioner  as  to  the  manner  and  method  in 
which  the  business  of  said  common  carriers  is  conducted, 
and  to  enable  your  petitioner  to  obtain  the  full  and  com- 
plete information  necessary  to  enable  your  petitioner  to 
perform  the  duties  and  carry  out  the  objects  for  which 


06S  Duties   to   Interstate   Shippers.  [<§  390 

it  was  created.'  But  in  the  present  case,  whatever  may 
be  the  right  of  the  commission  to  carry  on  an  investi- 
gation nnder  the  general  powers  conferred  in  section 
12,  tills  proceeding  was  under  the  complaint  filed,  and 
we  will  examine  the  testimony  offered  with  a  view  to 
its  comj^etency  under  the  allegations  made  by  the  com- 
plainant." 

§  391.  Power  of  Commission  to  Proceed  when  Act- 
ing upon  its  Own  Motion..  In  Harriman  v.  Interstate 
Commerce  Commission/'  the  Supreme  Court  held  that 
when  the  Commission  instituted  an  investigation  upon 
its  own  motion  and  not  upon  a  complaint  filed,  wit- 
nesses could  not  be  compelled  to  testify  before  the  Com- 
mission except  in  investigations  by  the  Commission  up- 
on matters  that  might  have  been  made  the  object  of  a 
complaint.  But  the  effect  of  this  decision,  however,  was 
eliminated  by  the  amendment  of  1910  to  section  1.3  of 
the  Act,  giving  the  Interstate  Commerce  Commission 
full  authority  and  power  at  any  time  to  institute  an  in- 
quiry, upon  its  own  motion,  in  any  case  and  as  to  any 
matter  or  thing  concerning  which  a  complaint  is  au- 
thorized to  be  made,  to  or  before  the  Commission  by  any 
provisions  of  the  Act,  or  concerning  which  any  question 
may  arise  under  the  provisions  of  the  Act  or  relating 
to  the  enforcement  of  any  of  the  provisions  of  the  Act, 
and  also  the  same  power  and  authority  to  proceed  with 
any  inquiry  instituted  on  its  own  motion  as  though  it 
had  been  appealed  to  by  complaint  or  petition  under 
any  of  the  provisions  of  the  Act,  including  the  power  to 
make  and  enforce  any  order  or  orders  in  the  case,  or  re- 
lating to  any  matter  or  thing  concerning  which  the  in- 
quiry is  had,  except  orders  for  the  payment  of  money. 
Concerning  this  broad  power  of  the  Commission,  the 
Supreme  Court  said:*'  "The  Interstate  Commerce  Act 
confers  upon  the  Commission  powers  of  investigation 
in  very  broad  language  and  this  court  has  refused  by 

.5.     211  U.  S.  407,  .53  L.  Ed.  253,  fi.      Smith     v.     Interstate     Com- 

29  Sup.  Ct.   115.  merce  Commission,  245  U.  S.  

62  L.  Ed.  ,  38  Sup.  Ct.  30. 


§  391]         Procedurk    before    Commission.  6G9 

fu)nstnu'tion  to  limit  it  so  far  as  tlio  l)usiness  of  tho 
(carriers  is  conofrned  and  their  relation  to  the  public. 
And  it  would  seem  to  be  a  necessary  deduction  from  the 
cases  that  the  investi,i?atin^  and  supervising  y)owers  of 
the  (/ommission  extend  to  all  of  the  activities  of  carriers 
and  to  all  sums  expended  by  them  which  could  affect  in 
any  way  their  benefit  or  l)urden  as  agents  of  the  ])ublic. 
If  it  be  grasped  thoroughly  and  kept  in  attention  that 
they  are  public  agents,  we  have  at  least  the  principle 
which  should  determine  judgment  in  particular  instan- 
ces of  regulation  or  investigation;  and  it  is  not  far  from 
true — it  may  be  it  is  entirely  true,  as  said  by  the  Com- 
mission— that  'there  can  be  nothing  private  or  confi- 
dential in  the  activities  and  expenditures  of  a  carrier  en- 
gaged in  interstate  commerce.'  Turning  to  the  special- 
ties of  the  Interstate  Commerce  Act  we  find  there  that 
all  charges  and  treatment  of  all  ]iassengers  and  ])roperty 
shall  be  just  and  reasonable,  and  there  is  a  specific  prohi- 
bition of  preferences  and  discriminations  in  all  the  ways 
that  they  can  be  executed,  with  corresponding  regulatory 
power  in  the  Commission.  And  authority  and  means 
are  given  to  enable  it  to  perform  its  duty.  By  section 
12  it  is  authorized  to  inquire  into  the  management  of 
the  business  of  carriers  and  keep  itself  informed  as  to 
the  manner  and  method  in  which  the  same  is  conducted, 
and  has  the  right  to  obtain  from  the  carriers  full  and 
complete  information.  It  may  (section  13)  institute 
an  inquiry  of  its  own  motion,  and  may  (section  20)  re- 
quire detailed  accounts  of  all  the  expenditures  and  reve- 
nues of  carriers  and  a  complete  exhibit  of  their  financial 
operations  and  i)rescribe  the  forms  of  accounts,  records 
and  memoranda  to  be  kept.  And  it  is  required  to  report 
to  Congress  all  data  collected  by  it.  It  would  seem  to 
be  an  idle  work  to  point  out  the  complete  comprehensive- 
ness of  the  language  of  these  sections  and  we  are  not 
dis]iosed  to  spend  any  time  to  argue  that  it  necessarily 
includes  the  power  to  inquire  into  expenditures  and  their 
proper  assignment  in  the  accounts,  and  the  questions 
under  review,  we  have  seen,  go  no  further.  They  are 
incidental  to  an  investigation  as  to  the  'manner  and 
method'  (section  12)  in  which  the  business  of  the  car- 


670  Duties  to   Interstate   Shippers.  [§  391 

riers  is  condncted;  ^hey  are  in  requisition  of  a  detailed 
account  of  their  expenditures  and  revenues  and  an  ex- 
hibit of  their  financial  operations  (section  20),  and  the 
answers  to  them  may  be  valuable  as  information  to  Con- 
gress (section  21).  A  limitation,  however,  is  deduced 
from  section  13.  It  is  said  to  be  confined  to  cases  where 
an  inquiry  is  instituted  'as  to  any  matter  or  thing  con- 
cerning which  a  complaint  is  authorized  to  be  made,  or 
concerning  which  any  question  may  arise  under  any 
provisions'  of  the  act  'or  relating  to  the  enforcement  of 
any  of  the  provisions'  of  the  act.  In  other  words,  that 
the  inquiry  is  determined  by  the  manner  of  procedure. 
The  objection  overlooks  the  practical  and  vigilant  func- 
tion of  the  Commission.  To  sustain  it  appellant  seems  to 
urge  that  there  must  be  put  into  words  by  some  com- 
plainant or  by  the  Commission,  if  it  move  of  itself,  some 
definite  charge  of  evil  or  abuse,  and  put  into  expression 
some  definite  remedy,  and  that  an  inquiry  must  not 
transcend  either  charge  or  remedy.  To  so  transcend, 
appellant  urges,  would  be  an  exercise  of  autocratic  pow- 
er and  is  condemned  in  Harriman  v.  Interstate  Com- 
merce Commission,  211  U.  S.  407,  29  Sup.  Ct.  115,  53  L. 
Ed.  253.  Appellant  presses  that  case  beyond  its  princi- 
ple. And  we  may  observe  that  section  13  has  been 
amended  and  broadened  since  the  decision  of  that  case. 
The  inquiry  in  the  present,  case  is  more  immediate  to 
the  function  of  the  Commission  than  the  inquiry  in 
that  and  comes  within  Interstate  Commerce  Commis- 
sion V.  Chicago,  R.  I.  &  P.  Ry.,  supra,  where  it  was  said, 
at  page  103  of  218  U.  S.,  at  page  656  of  30  Sup.  Ct. 
(54  L.  Ed.  946):  'The  outlook  of  the  Commission  and 
its  powers  must  be  greater  than  the  interest  of  the  rail- 
roads or  of  that  which  may  affect  those  interests.  It 
must  be  as  comprehensive  as  the  interest  of  the  whole 
country.  If  the  problems  which  are  presented  to  it 
therefore  are  complex  and  difficult,  the  means  of  solving 
them  are  as  great  and  adequate  as  can  be  provided.' 
And  they  must  necessarily  be  expressed  in  generalities. 
A  precise  specification  of  powers  might  work  a  limita- 
tion and  all  not  enumerated  be  asserted  to  be  withheld." 


§  39M I  Phockduke     hefohk     (-ommission.  G71 

§  392.  Power  of  Commission  to  Formulate  Rules 
of  Procedure.  'I'lic  .^tatuti-  autliorizcs  the  Coniiiii.ssioii 
to  conduct  proceediugs  before  it  in  such  manner  as  will 
best  conduce  to  the  j)ro])er  dis]iatch  of  business  and  to 
ends  of  justice.  The  (!oinniission  may  iiiai<e  or  amend 
such  general  rules  or  orders  as  may  be  required  f(jr 
the  order  and  regulation  of  pnxMM-dings  l)ef()re  it,  oi- 
before  any  division  of  the  (Commission,  including  forms 
of  notice  and  the  service  thereof,  which  shall  conform, 
as  nearly  as  may  be,  to  tliose  in  use  in  the  courts  of 
the  United  States.  A  majority  of  the  Commission  shall 
constitute  a  (luorum  for  the  transaction  of  business,  ex- 
cept as  may  be  otherwise  provided  by  statute;  but  no 
commissioner  shall  participate  in  any  hearing  or  pro- 
ceeding in  which  he  has  any  pecuniary  interest.  Every 
vote  and  official  act  of  the  Commission  or  any  division 
thereof,  shall  be  entered  of  record,  and  its  proceedings 
shall  be  public  upon  the  request  of  any  party  interested. 
The  Commission  shall  have  an  official  seal,  which  shall 
be  judicially  noticed.  Any  member  of  the  Commission 
may  administer  oaths  and  affirmations  and  sign  sub- 
poenaes.^ 

§  393.  Rules  Governing  Complaints  Filed  Before 
Commission.  Complaints  filed  before  the  Interstate 
Commerce  Commission  must  be  typewritten  on  one  side 
of  the  paper  only,  or  be  printed.  In  either  case  the 
complaint  must  conform  to  the  specifications  of  rule 
twenty-one.  The  names  of  all  parties,  complainant  or 
defendant,  must  be  stated  in  full,  without  abbreviations, 
and  the  address  of  each  complainant,  with  the  name  and 
address  of  his  attorney,  if  any,  must  appear  upon  each 
copy.  The  complaint  need  not  be  verified,  but  must 
be  signed  in  ink  by  the  complainant  or  his  duly  author- 
ized attorney.  The  complainant  must  furnish  as  many 
complete  copies  of  the  complaint  as  there  may  be  parties 
defendant  to  be  served,  including  receivers  or  trustees 
and  three  additional  copies  for  the  use  of  the  Commis- 

7.    Section  17  of  the  Act  to  Reg-      fra.  as  amended  by  Act  of  August 
ulate   Commerce,   appendix   A,   in-      9,   1917. 


t)72  Duties   to   Interstate    Shippers.  [§  393 

sion.  The  Commission  will  serve  the  complaint  upon 
each  defendant  by  leaving  a  copy  with  its  designated 
agent  in  the  District  of  Columbia,  or,  if  no  such  agent 
has  been  designated,  by  posting  a  copy  in  the  office  of 
the  secretary  of  the  Commission.  Complaints  should 
be  so  drawn  as  fully  and  completely  to  advise  the  de- 
fendant and  the  Commission  wherein  the  provisions  of 
the  act  have  been  violated  and  should  set  forth  briefly 
and  in  plain  language  the  facts  claimed  to  constitute 
such  violation.  Two  or  more  grounds  of  complaint  in- 
volving the  same  principle,  subject,  or  state  of  facts, 
may  be  included  in  one  complaint,  but  should  be  sep- 
arately stated  and  numbered.  The  several  rates,  regu- 
lations, and  discriminations  complained  of  should  be 
set  out  by  specific  reference  to  the  tariffs  in  which  they 
appear  whenever  that  is  practicable.  Where  the  rate 
attacked  is  one  increased  after  January  1,  1910,  the  com- 
plaint should  so  state.  In  case  discrimination  in  viola- 
tion of  sections  3  or  4  of  the  act  is  alleged  the  complaint 
should  specify  and  describe  the  detail  the  particular 
preference  or  advantage  to  any  person,  company,  firm, 
corporation,  locality,  or  traffic,  which  is  relied  upon  as 
constituting  such  discrimination.  Appropriate  allegation 
should  also  be  made  in  such  case  to  present  for  decision 
the  issue  as  to  whether  or  not  such  rates,  charges,  or 
other  matters  complained  of  are  just  and  reasonable. 
In  case  a  violation  of  section  4  is  alleged  the  complaint 
should  specify  and  describe  in  detail  the  particular  vio- 
lation of  that  section,  giving  tariff  references  whenever 
practicable.^ 

§  394.  Essentials  of  Complaints  When  Reparation 
is  Soug'ht.  Except  under  unusual  circumstances  and 
for  good  cause  shown,  reparation  will  not  be  awarded 
unless  specifically  prayed  for  in  the  complaint  or  in 
an  amendment  thereto  filed  before  the  submission  of  the 
case.  After  a  final  order  has  been  entered  upon  a  com- 
plaint in  which  reparation  is  not  sought  or,  if  prayed, 

8.     Rule  3  of  Rules  of  Practice      before  the  Commission. 


§  394 1         Pkockduke    befohk    Commission.  673 

has   been   denied,   the   CommiH^ioii    will    not   ordinarily 
award  re}jaration  upon  a  comi)laint  subsequently   filed 
and  based  upon  any  finding  upon  the  first  comj^laint. 
Where  reparation  is  sought  the  complaint  sliould  state 
(a)   that  complainant  makes  claim  for  reparation,    (b) 
the  name  of  each  individual  claimant  asking  reparation, 
(c)   the  commodities  transported,   (d)   the  names  of  de- 
fendants against  which  claim  is  made,  (e)  the  ]ieri<)d  of 
time  witliin  which  or  the  specific  date  upon  which  the 
shi])ments  were  made,  and  (f)  the  points  of  origin  and 
destination,  either  si)ecifically,  or,  where  they   are  nu- 
merous, by  a  definite  indication  of  a  defined  territorial 
or  rate  group  of  the  i)oiiits  of  origin   and  destination. 
Under  a  general  rate  adjustment  challenged  in  the  com- 
plaint, or  upon  many  shipments  under  a  particular  rate, 
or  where  many  points  of  origin  or  destination  are  in- 
volved, it  is  the  i)ractice  of  the  Commission  first  to  find 
and   deteniiine  in  its  report   as   to   the   reasonableness 
of  the  rate  or  rates  in  issue,  and  whether  the  parties 
seeking  reparation  paid  and  bore  the  charges  and  are 
entitled  to  reparation,  thereafter  giving  to  such  parties 
an  opportunity  to  make  proof  respecting  the  shipments 
u])on  which  reparation  is  claimed.    In  such  cases  freight 
bills  and  other  exhibits  bearing  on  the  amount  of  rei)ara- 
tion  should  be  reserved  until  called  for  and  should  nut 
be  filed  with  the  complaint.    The  parties,  however,  should 
be  prepared  to  produce  at  the  hearing  the  freight  bills 
and  other  exhibits  bearing  on  the  amount  of  reparation, 
for  the  reason  that  they  may  become  necessary  in  de- 
veloping other  facts  in  the  case.     When  a  claim  for  re- 
paration   has   been   before   the   Commission   informallv 
and  the  parties  have  been  notified  by  the  Commission 
that  the  claim  is  of  such  a  nature  that  it  can  not  be 
determined  informally,  or  when  the  parties  voluntarily 
withdraw    the    claim    from    informal    consideration,    or 
when  a  claim  has  been  filed  with  the  Commission  merelv 
to  stop  the  running  of  the  statute  of  limitations,  formal 
complaint  thereon  must  be  filed  within  six  months  from 
the  date  of  such  notification,  withdrawal  or  filing.    Other- 
wise the  parties  will  be  deemed  to  have  abandoned  their 
claim  and  the  complaint  will  not  be  entertained:  Provid- 

1    Control    Carriers    43 


()7-lr  Duties   to   Interstate   Shippers.  [§  394 

ed,  liowever,  That  this  rule  does  not  apply  to  formal 
complaints  for  reparation  liled  witliin  two  years  from 
the  date  of  the  delivery  of  the  shipments.^ 

§  395.  Formal  Claims  for  Reparation  Based  upon 
Finding's  of  Commission.  "When  the  (Commission  finds 
that  reparation  is  dne,  bnt  that  the  amonnt  can  not  be 
ascertained  npon  the  record  before  it,  the  complainant 
should  immediately  prepare  a  statement  in  accordance 
with  Form  5,  showing  as  to  each  shipment  upon  which 
reparation  is  claimed,  the  date  of  delivery,  car  initials 
and  number,  points  of  origin  and  destination,  route, 
commodity,  weight,  rate  applied,  charges  collected,  rate 
found  reasonable  and  charges  applicable  thereunder, 
and  the  amount  of  reparation  payable  upon  the  basis  of 
the  findings.  Such  statements  should  not  include  any 
shipments  which  were  transported  upon  rates  other 
than  those  included  in  the  Commission's  findings  nor 
any  shipments  which  were  delivered  at  destination  more 
than  two  j^ears  before  the  complaint  was  informally  or 
formally  presented  to  the  Commission.  The  statement 
should  then  be  forwarded  to  the  carrier  which  collected 
the  charges  for  certification  as  to  its  accuracy.  Such 
certification  should  cover  not  only  the  movement  of  the 
shipments  and  the  amount  of  charges  but  also  the 
amount  of  reparation  claimed  under  the  Commission's 
findings.  Discrepancies,  duplications,  or  other  errors  in 
such  statements  should  be  adjusted  by  the  parties  and 
an  agreed  statement  submitted  to  the  Commission  in 
accordance  with  Form  5.^° 

§  396.  Specifications  of  Complaints,  Answers,  Briefs, 
Petitions,  Applications,  etc.  All  complaints,  answers, 
petitions,  applications,  depositions,  or  other  papers  to 

9.     Rule  3  of  Rules  of  Practice  livery  of  a  shipment  and  not  from 

before    the    Commission.  the  date  the  freight  charges  were 

In  the  preparation  of  its  rules,  paid.     See  Section  302,  supra. 

the    Commission    erroneously    as-  10.     Rule  5,  Appendix  E,  infra. 

sumed  that  the  statute  of  limita-  For  Form,  see  Appendix  E,  infra. 
tion  ran  from  the  date  of  the  de- 


§  398 1         Prockdure    before    Commission.  675 

be  filed,  if  typewritten,  iiiiii^t  be  on  paper  not  more  than 
81/^  inches  wide  and  not  more  than  12  inches  long,  and 
weigliing  not  loss  than  IG  iwunds  to  the  ream,  folio  base 
17  by  22  inches,  with  left-iiand  margin  not  less  than  lU 
inches  wide.  The  impression  must  be  on  only  one  side 
of  the  paper.  Whenever  such  papers  are  printed  they, 
as  well  as  briefs,  must  be  in  10  or  12  point  type,  on 
good  unglazed  paper,  5%  inches  wide  by  9  inches  long, 
with  inside  margin  not  less  than  1  inch  wide,  and  with 
double-leaded  text  and  single-leaded  citations." 

§  397.  Applications  to  Carriers  Under  Fourth  Sec- 
tion. Any  common  carrier  subject  to  the  act  to  regulate 
commerce,  as  amended,  may  apply  to  the  Commission, 
under  the  proviso  clause  of  the  fourth  section,  for  such 
authorization  as  it  is  empowered  to  grant  thereunder. 
Such  application  must  be  verified  and  conform  to  rule 
twenty-one.  The  application  should  specify  the  places 
and  trafific  involved,  the  rates,  fares,  or  charges  on  such 
traffic  for  the  shorter  and  longer  distances,  the  car- 
riers other  than  the  applicant  which  may  be  interested  in 
the  traffic,  the  special  nature  of  the  case,  the  character 
of  the  hardship  claimed  to  exist,  and  the  extent  of  the 
relief  sought  by  the  applicant.  Upon  the  filing  of  such 
application  the  Comission  will  take  such  action  as  the 
circumstances  of  the  case  require. ^^ 

§  398.  Suspensions  of  Tariff  Schedules  under  Sec- 
tion 15.  Suspensions  of  tariff  schedules  under  section 
la  of  the  act  will  not  ordinarily  be  considered  unless 
application  therefor  is  made  in  writing  at  least  10  days 
before  the  time  fixed  in  the  tariff  for  such  rates  to  take 
effect.  Applications  for  suspensions  must  indicate  the 
schedule  affected  by  its  I.  C.  C.  number  and  give  specific 
reference  to  the  items  against  which  protest  is  made, 
together  with  a  statement  of  the  grounds  thereof.  When 
application  for  the  suspension  of  tarilf  schedules  is 
made,  seven  copies  of  such  application  should  be  fur- 
nished." 

11.  Rule   21.  13.     Rule  19. 

12.  Rule   18. 


076  DuTiEwS   TO   Inteestate   Shippees.  [§  399 

§  399.     Requirements  of  the  Rules  as  to  Answers 
Filed  Before  Commission.    Answers  must  be  typewritten 
on  one  side  of  the  paper  only,  or  be  printed.     In  either 
case  the  answer  must  conform  to  the  specifications  of 
rule  twenty-one.    One  copy  of  each  answer  must,  unless 
the  Commission  orders  otherwise,  be  filed  with  the  sec- 
retary of  the  Commission  at  his  office  in  Washington, 
D.  C.',  within  30  days  after  the  day  of  service  of  the 
complaint,  by  defendants  whose  general  offices  are  at  or 
west  of  El  Paso,  Tex.,  Salt  Lake  City,  Utah,  or  Spokane, 
Wash.,  and  within  20  days  by  all  other  defendants,  and 
a  copy  of  each  such  answer  must  be  at  the  same  time 
served  personally  or  by  mail  upon  the  complainant  or 
his   attorney.     The   Commission  will,   when   advisable, 
shorten  or  extend  the  time  for  answer.    Answers  should 
be  so  drawn  as  fully  and  completely  to  advise  the  com- 
plainant   and    the    Commission    of    the    nature    of    the 
defense,    and    should    admit    or    deny    specifically    and 
in  detail    such    material    allegation    of    the    complaint. 
Whenever  it  is  apparent  from  the  complaint,  either  by 
direct  allegation   or  otherwise,   that   a  departure  from 
the  requirements  of  the  fourth  section  of  the  act  is  in- 
volved,   the   answer    should    set   forth    by   number    the 
particular  application  or  order  which  protects  such  de- 
parture.    An  answer  denying  that  a  discrimination  is 
undue  or  unjust  should  explain  fully  wherein  such  dis- 
crimination is  not  undue  or  unjust.     It  is  desired  that 
every  effort  be  thus  made  to  narrow  the  issues  upon 
hearing.    If  a  defendant  satisfies  a  complaint  either  be- 
fore or  after  answering,  a  signed  acknowledgment  there- 
of must  be  filed  by  both  parties,  stating  when  and  how 
the  complaint  has  been  satisfied." 

§  400.  Method  of  Serving  Papers.  Under  rule  6, 
notices  and  copies  of  papers,  other  than  complaints, 
depositions,  and  intervening  petitions,  must  be  served 
upon    all    parties   personally    or   by   mail.      When   any 

14.     Rule  4  of  Rules  of  Practice      before  the  Commission. 


<§i  403]         Procedure    reeore    Commission.  677 

party  has  appeared  by  attorney,  service  upon  such  at- 
torney will  be  deemed  proper  service  upon  the  party. ''^ 

§  401.  Amendments  to  Complaints  or  Answers  in 
Proceedings  Before  Commission.  Amendments  to  any 
complaint  or  ans\v<'r  in  any  i)roceeding  will  be  allowed 
or  refused  by  the  Commission  at  its  discretion.^" 

§  402.  Commission  May  Order  Testimony  to  be 
Taken  by  Deposition  at  any  Stage  of  Proceedings.  Any 
party  in  any  proceeding  or  investigation  pendinf;:  before 
the  Commission  may  take  the  testimony  of  any  witness 
by  deposition  after  a  cause  or  proceeding  is  at  issue  on 
petition  and  answer.  The  Commission  may  also  by  order, 
permit  depositions  to  be  taken  in  any  proceeding  or  in- 
vestigation pending  before  it  at  any  stage  of  such  pro- 
ceeding or  investigation.  Depositions  may  be  taken  be- 
fore any  judge  of  any  court  of  the  United  States,  or  any 
commissioner  or  clerk  of  a  district  court,  or  any  chancel- 
lor, justice,  or  judge  of  a  supreme  or  sufjerior  court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  county 
court,  or  court  of  common  pleas  of  any  of  the  United 
States  or  any  notary  public,  not  being  of  counsel  or 
attorney  to  either  of  the  parties,  nor  interested  in  the 
event  of  the  proceeding  or  investigation.  Reasonable 
notice  must  be  given  in  writing  by  the  party  or  his 
attorne}^  proposing  to  take  such  deposition  to  the  op- 
posite party  or  his  attorney  of  record,  as  either  may  be 
nearest,  which  notice  shall  state  the  name  of  the  witness 
and  the  time  and  place  of  the  taking  of  the  deposition. 
Any  person  may  be  compelled  to  appear  and  depose, 
and  to  produce  documentary  evidence,  in  the  same  man- 
ner as  witnesses  may  be  compelled  to  appear  and  tes- 
tify and  produce  documentary  evidence  before  the  Com- 
mission as  provided  in  the  statute." 

§  403.  Method  of  Hearing  Before  the  Commission. 
When  issue  is  joined  upon  formal  complaint  by  service 
of  answer,  or  by  failure  of  defendant   to   answer,  the 

15.  Rule    6.  17.      Section    12    of    the    Act    to 

16.  Rule  7.  Regulate  Commerce,  Appendix  A, 

infra. 


678  Duties   to    Inteestate    Shippers.  [§  403 

Commission  will  assign  a  time  and  place  for  hearing. 
Witnesses  will  be  examined  orally  before  the  Commis- 
sion or  one  of  its  examiners,  nnless  their  testimony  be 
taken  by  deposition  or  the  facts  be  agreed  upon  as  pro- 
vided for  in  these  rules.  At  hearings  on  formal  com- 
plaint the  complainant  shall  open  and  close.  At  hearings 
upon  applications  for  relief  from  any  provision  of  the 
act  the  applicant  shall  open  and  close.  At  hearings  of  in- 
vestigation and  suspension  proceedings  the  respondent 
shall  open  and  close.  At  hearings  of  all  other  investiga- 
tions, on  the  motion  of  the  Commission,  the  Commission 
shall  open  and  close,  except  that  upon  proper  notice  in 
advance  of  the  hearing  the  Commission  may  prescribe  a 
different  order.  In  hearings  of  several  proceedings  up- 
on a  consolidated  record  the  presiding  commissioner 
or  examiner  shall  designate  who  shall  open  and  close. 
Interveners  shall  follow  the  party  in  whose  behalf  the 
intervention  is  made,  and  in  all  cases  where  the  inter- 
vention is  not  in  support  of  either  original  i^arty  the 
presiding  commissioner  or  examiner  shall  designate  the 
order  of  procedure  for  such  interveners.^^ 

§  404,  May  Hold  Hearings  or  Prosecute  Inquiries 
Anywhere  in  the  United  States.  The  statute  prescribes 
that  the  principal  office  of  the  Commission  shall  be  in 
Washington,  I).  C,  where  its  general  sessions  shall  be 
held.  But  whenever  the  convenience  of  the  public  or 
the  parties  may  be  promoted,  or  delay  or  expense  pre- 
vented, the  Commission  may  hold  special  sessions  in 
any  part  of  the  United  States.  It  may  also,  by  one  or 
more  of  the  commissioners,  prosecute  any  inquiry  neces- 
sary to  its  duties,  in  any  part  of  the  United  States 
into  any  matter  or  question  of  fact  pertaining  to  the 
business  of  any  common  carrier  subject  to  the  provisions 
of  the  Interstate  Commerce  Act." 

18.  Rule  10.  Regulate  Coramerce,  Appendix  A, 

19.  Section    19    of    the  ,Act    to      infra. 


§    406]  PROCKDrHK       MKF()I;K      COMMISSION.  679 

§  405.  Continuances,  Extensions  of  Time  and  Stip- 
ulations. ConliimaiK'cs  aixl  extensions  ol'  lime  will  Ije 
^'ranted  or  denied  1)>  tiie  Commission  at  its  discretion. 
I*arties  to  any  proceedin<i,-  may,  by  sti))ulati()n  in  writin«< 
liled  witli  the  secretary,  or  presented  at  tlie  lieariu*^, 
a^-ree  upon  the  facts,  or  any  i)ortion  thereof,  involved 
tlierein.  It  is  desired  tliat  tlie  facts  l)e  thns  agreed  upon 
as  far  as  and  whenever  ])racti('able.-" 

§  406.  Commission  may  Compel  Attendance  and 
Testimony  of  Witnesses  and  Production  of  Papers,  l^'oi 
tlie  i)urpose  of  effectively  enforcing-  the  jirovisions  of 
the  statute,  the  Commission  is  authorized,  to  require,  by 
subpoena,  the  attendance  of  witnesses  and  the  produc- 
tion of  all  books,  papers,  tariffs,  contracts,  ai^reeinents 
and  documents  relating  to  any  matter  under  investiga- 
tion from  any  place  in  the  United  States,  to  any  desig- 
nated place  of  hearing.-'  In  case  of  disobedience  to  a  sub- 
poena, the  Commission,  or  any  party  to  a  proceeding  be- 
fore the  Commission,  may  invoke  the  aid  of  any  court  of 
the  United  States  to  require  the  attendance  and  testi- 
mony of  any  witness  and  the  production  of  books, 
papers  or  documents."  Should  any  carrier  subject  to  the 

20.  Rules  8  and  9.  S.  361,  55  L.  Ed.  771,  31  Sup    Ct. 

21.  Section  12  of  the  Act  to  538,  Ann.  Cas.  1912D  558;  Wilsun 
Regulate  Commerce,  Appendix  A,  v  United  States,  220  U.  S.  614,  55 
'■"/'•"•  U  Ed.  610,  31  Sup.  Ct.  718;     Har- 

22.  Ellis  V.  Interstate  Com-  rinian  v.  Interstate  Commerce 
merce  Commission,  237  U.  S.  434,  Commission,  211  U.  S.  407,  53  L. 
59  L.  Ed.  1036,  35  Sup.  Ct.  645:  Ed.  253,  29  Sup.  Ct.  115;  Texas 
United  States  v.  Louisville  &  N.  &  P.  R.  Co.  v.  Abilene  Cotton  Oil 
R.  Co.,  236  U.  S.  318,  59  L.  Ed.  Co.,  204  U.  S.  426.  51  L.  Ed.  553, 
598.  35  Sup.  Ct.  363;  United  27  Sup.  Ct.  350,  9  Ann.  Cas.  1075: 
States  V.  Louisville  &  N.  R.  Co.,  Nelson  v.  United  States.  201  U.  S. 
235  U.  S.  314,  59  L.  Ed.  245,  35  92,  50  L.  Ed.  673,  26  Sup.  Ct.  358: 
Sup.  Ct.  113;  Interstate  Com-  Hale  v.  Henkel.  201  U.  S.  43,  50 
merce  Commission  v.  Louisville  &  L.  Ed.  652.  26  Sup.  Ct.  370;  In- 
N  R.  Co..  227  U.  S.  88,  57  L.  Ed.  terstate  Commerce  Commission  v 
431,  :i3  Sup.  Ct.  185;  Interstate  Baird,  194  U.  S.  25,  48  L.  Ed.  860, 
Commerce  Commission  v.  Good-  24  Sup.  Ct.  563;  Adams  v.  New 
rich  Transit  Co..  224  U.  S.  194,  York.  192  U.  S.  585.  48  L.  Ed.  575. 
56  L.  Ed.  729,  32  Sup.  Ct.  436;  24  Sup.  Ct.  372;  Interstate  Com- 
Wilson    V.    United    States,    221    U.  merce   Commission    v.   Cincinnati, 


680  Duties   to   Interstate   Shippers.  [§  406 

act,  or  other  persons  refuse  to  obey  a  subpoena,  any  dis- 
trict court  within  the  jurisdiction  of  which  the  inquiry  is 
carried  on,  may  issue  an  order  requiring  such  carrier  or 
other  persons  to  appear  before  the  Commission  and  give 
evidence  touching  the  matter  in  question,  and  produce 
books  and  papers,  if  so  ordered.  Any  failure  to  obey 
such  order  of  the  court  may  be  punished  by  such  court 
as  a  contempt  thereof.  No  witness  shall  be  excused  from 
testifying  and  giving  evidence  because  such  testimony 
and  evidence  may  tend  to  incriminate  him;  but  such 
evidence  or  testimony  shall  not  be  used  against  the 
witness  on  the  trial  of  any  criminal  proceeding.^^ 

§  407.  Schedules,  Contracts  and  Annual  Reports 
Filed  with  Commission — Public  Records  Receivable  as 
Prima  Facie  Evidence,  When.  It  is  further  provided  in 
section  16  of  the  Ad  that  the  copies  of  schedules  and 
classifications  and  tariffs  of  rates,  fares  and  charges, 
and  of  all  contracts,  agreements  and  arrangements  be- 
tween common  carriers  filed  with  the  Commission  as 
provided  by  statute,  and  the  statistics,  tables,  and  figures 
contained  in  the  annual  or  other  reports  of  carriers  made 
to  the  Commission  as  required  under  the  provisions  of 
the   Act    shall   be   preserved   as   public  records   in    the 

N.   O.   &   T.   p.   Ky.   Co.,   167   U.   S.  U.   S.   603,   55   L.   Ed.   873,   31   Sup. 

479,    42    L.    Ed.    243,    17    Sup.    Ct.  Ct.  676;    Wilson  v.   United  States, 

896;     Brown  v.  Walker,  161  U.  S.  221   U.   S.   361,   55   U   Ed.   771,   31 

591,  40  L.  Ed.  819,  16  Sup.  Ct.  644;  Sup.    Ct.    538,    Ann.    Cas.     19120 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  558;      Hammond    Packing    Co.    v. 

V.    Backus,    154    U.    S.    439,    38    L.  State,  212  U.  S.  322,  53  L.  Ed.  530, 

Ed.  1041,  14  Sup.  Ct.  1122;    Coun-  29  Sup.  Ct.  370,  15  Ann.  Cas.  645; 

selman    v.    Hitchcock,    142    U.    S.  Consolidated     Rendering     Co.     v. 

547,   35   L.    Ed.    1110,   12    Sup.    Ct.  state,  207  U.  S.  541,  52  L   Ed.  327, 

195;     Connecticut    Mut.    Life    Ins.  28  Sup.  Ct.  178,  12  Ann.  Cas.  658; 

Co.  V.   Schaefer,   94  U.   S.   457,   24  ^^^^  ^    Henkel.  201   U.   S.   43,   50 

^-  ^^-  ^^^-  L   Ed.  652,  26  Sup.  Ct.  370;  Brown 

23.     Crenshaw   v.    State.   227   U.       ^  ^^ 

S.  389,   57  L.  Ed.   565,  33   Sup.  Ct.  '  ' 

294;    Baltimore  &  O.  R.  Co.  v.  In-  ^^^'  ^'  ^"P-  C*'  ''''    Counselman 

terstate     Commerce     Commission,  ^-  Hitchcock,  142  U.  S.  547,  35  L. 

221    U.    S.    612,   55   L.    Ed.    878,    31  Ed.    1110,   12    Sup.   Ct.   195;     Boyd 

Sup.    Ct.    621;      American    Litho-  v.  United  States,  116  U.  S.  616,  29 

graphic   Co.   v.  Werckmeister,  221  U   Ed.  746,  6    Sup.   Ct.   524. 


§  409]         Prockduhe    BKioiiK    Commission.  681 

custody  of  tlie  secretar}'  of  tliu  Commission,  and  shall 
bo  receivod  as  pr'nna  fdcir  c-videnee  of  what  they  pur- 
port to  be  for  the  i)urpose  of  iiivestiiL^ations  by  the 
Commission  and  in  all  judicial  proceedings.  Copies  of 
and  extracts  from  an>'  of  the  said  schedules,  classifica- 
tions, tariffs,  contracts,  agreements,  arrangements,  or 
reports,  made  public  records  as  aforesaid,  certified  ))y 
the  secretary,  under  the  Commission's  seal,  shall  be  re- 
ceived in  evidence  with  like  effect  as  the  originals." 
The  rules  of  practice  prescribe  that  if  any  portion  of  a 
tariff,  report,  circular,  or  other  documents  on  file  with 
the  Commission,  is  offered  in  evidence  in  any  proceed- 
ing before  the  Commission,  the  party  offering  the  same 
must  give  specific  reference  to  the  items  or  pages  and 
lines  thereof  to  be  considered;  that  the  Commission  will 
take  notice  of  items  in  taritfs  and  annual  or  other  periodi- 
cal reports  of  carriers  properly  on  file  with  it,  or  in 
any  annual,  statistical,  and  other  offioial  reports  of  the 
Commission  and  that  when  it  is  desired  to  direct  the 
Commission's  attention  to  such  tariffs  or  reports  upon 
hearing  or  in  briefs  or  argument,  the  party  offering 
the  same  must  give  specific  reference  to  the  items  or 
pages  and  lines  thereof  to  be  considered. ^^ 

§  408.  Transcripts  of  Testimony  to  be  Furnished 
Complainant  and  Defendant.  One  copy  of  the  testimony 
will  be  furnished  by  the  Commission  for  the  use  of  the 
complainant  and  one  copy  for  the  use  of  the  defendant, 
without  charge.  If  two  or  more  complainants  or  defend- 
ants have  appeared  at  the  hearing,  such  complainants 
or  defendants  must  designate  to  whom  the  copy  for 
their  use  shall  be  delivered.  In  proceedings  instituted 
by  the  Commission  on  its  own  motion,  including  pro- 
ceedings involving  the  suspension  of  tariffs,  no  copies 
of  testimon}"  will  be  furnished  without  charge."" 

§  409.  Rules  Governing  Filing  of  Briefs.  Unless 
otherwise  specifically  ordered,  briefs  may  be  filed  upon 

24.      Section    16    of    the    Act    to  25.     RuIpr  of  Practice,  Appendix 

Regulate  Commerce,  Appendix  A,      E.  infra, 
infra.  26.     Rule  16. 


682  Duties   to    Interstate    Shippers.  [§  409 

application  made  at  hearings  or  npon  order  of  the  Com- 
mission. Briefs  must  be  printed  in  conformity  with  the 
specifications  of  rule  twent.y-one,  and  contain  an  ab- 
stract of  the  evidence,  assembled  by  subjects,  with  ref- 
erence to  the  pages  of  the  record  whereon  the  evidence 
appears.  There  should  be  included  requests  for  specific 
findings  which  the  parties  think  the  Commission  should 
make.  Documentary  exhibits  should  not  be  reproduced 
in  briefs,  but  may,  if  it  is  desired,  be  reproduced  in  an 
appendix  to  the  brief.  Analyses  of  such  exhibits  should 
be  included  in  the  abstract  of  evidence  under  the  sub- 
jects to  which  they  pertain.  In  cases  involving  a  dis- 
crimination in  rates  against  one  community  or  locality 
and  in  favor  of  another  community  or  locality,  or  other- 
wise involving  a  relationship  of  rates,  and  in  investiga- 
tion and  suspension  cases,  the  party  who  is  required  to 
file  the  first  brief  shall  insert  therein,  opposite  the 
statement  of  the  case,  a  small  map  or  chart  of  the  ter- 
ritory showing  the  rate  structure  involved.  The  ab- 
stract of  evidence  should  follow  the  statement  of  the  case 
and  precede  the  argument.  Every  brief  of  more  than 
20  pages  shall  contain  on  its  front  flyleaves  a  subject 
index  with  page  references,  the  subject  index  to  be 
supplemented  by  a  list  of  all  cases  referred  to  alphabet- 
ically arranged,  together  with  references  to  pages  where 
the  cases  are  cited.  Briefs  for  the  various  parties  shall 
be  filed  in  the  same  order  as  governs  in  the  taking  of 
their  testimony  at  hearings.  At  the  close  of  the  testi- 
mony in  each  case  the  presiding  commissioner  or  ex- 
aminer will  fix  the  time  for  filing  and  service  of  the  re- 
spective briefs  as  follows,  unless  good  cause  for  varia- 
tion therefrom  is  shown:  For  the  opening  brief,  30  days 
from  close  of  testimony;  for  the  brief  of  the  opposing 
party,  15  days  after  the  date  fixed  for  the  opening  brief; 
for  reply  brief,  10  days  after  the  date  fixed  for  the  brief 
of  the  opposing  party.  Briefs  of  interveners  shall  be 
filed  and  served  within  the  time  fixed  for  the  brief  of 
the  party  in  whose  behalf  the  intervention  is  made,  or 
within  such  other  time  as  may  be  fixed  by  the  presiding 
commissioner  or  examiner.  Briefs  not  filed  with  the 
Commission  and  served  so  as  to  reach  oi)posing  counsel 


§    410)  l'|{0("i;iU'HK       HKFOHK      COMMISSION.  683 

on  or  before  the  (]at<'s  fixed  therefor  will  not  be  re- 
ceived exee})t  by  sjxH'ial  i)erniission  of  the  Commission. 
Parties  wlio  fail  to  lile  ojjening  brief,  as  required  by 
this  rule,  will  not  l)e  permitted  to  file  reply  to  brief  of 
opposiiift-  ])arty.  All  l)riefs  must  be  filed  with  the  sec- 
retary and  be  accompanied  by  notice,  showing  service 
upon  all  opposing  counsel  who  ai)peared  at  the  hearing 
or  on  brief,  and  15  copies  of  each  brief  shall  be  furnished 
for  the  use  of  the  Commission,  unless  otherwise  ordered. 
A])plications  for  extension  of  time  in  whicli  to  file  briefs 
shall  be  by  petition,  in  writing,  stating  the  facts  on 
which  the  ai)plication  rests,  which  must  l)e  filed  with 
the  Commission  at  least  five  days  before  the  time  for 
filing  such  brief.  Oral  argument  will  be  liad  only  as 
ordered  by  the  Commission.  Applications  tlierefor  shall 
be  made  at  the  hearing  or  in  writing  within  10  days 
aftei'  the  close  of  testimony.-' 

§  410.  Orders  of  the  Commission — Enforcement, 
Service  of,  and  Duties  of  Carriers  Thereunder.  Every 
order  of  the  Commission  must  be  forthwith  served  up- 
on the  designated  agent  of  the  company  in  the  city  of 
Washington  or  in  such  manner  as  may  be  provided  by 
law.  It  shall  be  the  duty  of  every  common  carrier,  its 
agents  and  employes,  to  observe  and  comply  with  such 
orders  as  long  as  the  same  shall  remain  in  efi^'ect.  The 
Commission  is  authorized  to  suspend  or  modify  its 
orders  ujion  such  notice  and  in  such  manner  as  it  shall 
deem  proper.  Any  carrier,  officer,  representative,  or 
agent  of  any  carrier,  or  any  receiver,  trustee,  lessee, 
or  agent  of  either  of  them,  who  knowingly  fails  or 
neglects  to  obey  any  order  made  under  the  provisions 
of  section  15  of  the  Act  to  Regulate  Commerce  shall 
forfeit  to  the  United  States  the  sum  of  Five  Thousand 
Dollars  for  eacli  offense.  Every  distinct  violation  shall 
be  a  separate  offense  and  in  case  of  a  continuing  viola- 
tion, each  day  shall  be  deemed  a  separate  offense.  The 
forfeiture    shall   be   payable    into    tlic    Treasury   o.^   the 

27.     Rule   14. 


684  Duties   to   Interstate   Shippers.  [§  410 

United  States,  and  is  recoverable  in  a  civil  suit  in  the 
name  of  the  United  States,  brought  in  the  district  where 
the  carrier  has  its  principal  operating  office,  or  any 
district  through  which  the  road  of  the  carrier  runs.  The 
statute  makes  it  the  duty  of  the  various  district  at- 
torneys, under  the  direction  of  the  Attorney  General  of 
the  United  States,  to  prosecute  for  the  recovery  of  for- 
feitures. The  costs  and  expenses  of  such  prosecutions 
shall  be  paid  out  of  the  appropriation  for  the  expenses 
of  the  courts  of  the  United  States.  The  statute  further 
provides  that  if  any  carrier  fails  or  neglects  to  obey 
any  order  of  the  Commission  other  than  for  the  payment 
of  money,  while  the  same  is  in  effect,  the  Interstate 
Commerce  Commission,  or  any  party  injured  thereby, 
or  the  United  States  by  its  Attorney  General,  may  apply 
to  the  courts  for  the  enforcement  of  such  order.  If, 
after  hearing,  the  court  determines  that  the  order  was 
regularly  made  and  duly  served,  and  that  the  carrier  is 
in  disobedience  of  the  same,  the  court  shall  enforce 
obedience  of  such  order  by  writ  of  injunction  or  other 
proper  process,  mandatory  or  otherwise,  to  restrain  such 
carrier,  its  officers,  agents  or  representatives  from  further 
disobedience  of  such  order,  or  to  enjoin  upon  it  or  them 
obedience  to  the  same.^*  The  rules  of  practice  before  the 
Commission  provide  that  if  an  order  has  been  issued, 
the  defendants  named  therein  must  promptly  notify 
the  secretary  of  the  Commission  on  or  before  the  date 
upon  which  such  order  becomes  effective  whether  or  not 
compliance  has  been  made  therewith.  If  a  change  in 
rates  is  required,  the  notification  to  the  secretary  must 
be  given  in  addition  to  the  tiling  of  proper  tariffs.^^ 

§  411.  Applications  for  Rehearing  or  Reopening  be- 
fore the  Commission — Procedure.  The  statute  further 
jjrovides  that  after  a  decision,  order  or  requirement  has 
been  made  by  the  Commission  in  any  proceeding,  any 
party  thereto  may  at  any  time  make  application  for  re- 

28.     Section    16    of   the   Act   to  29.    Rules  of  Practice,  Appendix 

Regulate  Commerce,  Appendix  A,       E,    infra, 
iiifra. 


^   4]  1  J  I'HOf.'KDURP:      BEFORE      COMMISSION.  685 

hearing-  of  the  same,  or  anj'  matter  determined  therein, 
and  the  Commission  may,  in  its  discretion,  grant  such 
a  rehearing  if  sufficient  reason  therefor  be  made  to  ap- 
pear.   Applications  for  rehearing  are  governed  by  such 
general   rules   as   the   Commission   may   establish.      No 
such  application  shall  excuse  any  carrier  from  comply- 
ing with  or  obeying  any  dechsion,  order  or  requirement 
of  the  Commission,  or  operate  in  any  manner  to  stay  or 
postpone  the   enforcement   thereof  without   the   special 
order  of  the  Commission.    When  a  rehearing  is  granted 
the  proceedings  thereupon  shall  conform  as  nearly  as 
may  be  to  the  i)roceedings  in  an  original  hearing,  except 
as  the  Commission  may  otherwise  direct.  If,  in  the  judg- 
ment of  the  Commission  after  such  rehearing  and  a  con- 
sideration of  all  the  facts,  including  those  arising  since 
the  first  hearing,  it  shall  appear  that  the  original  deci- 
sion, order  or  requirement  is  in  any  respect  unjust  or 
unwarranted,   the  Commission  may  reverse,  change   or 
modify   the    same   accordingly.      The    statute    provides 
that  any  decision,  order  or  requirement  made  after  such 
rehearing,  reversing,  changing  or  modifying  the  original 
determination,  shall  be  subject  to  the  same  provisions 
as  an  original  order.'°    The  rules  of  practice  before  the 
Commission  provide  that  applications  for  reopening  a 
proceeding  after  final  submission,  or  for  rehearing  or 
reargument  after  a  decision,  must  be  by  petition  stating 
specifically  the  grounds  relied  upon,  and  copies  thereof 
must  be  served  by  the  party  filing  the  same  upon  all 
opposing  counsel  who  appeared   at   the   hearing  or  on 
brief;  that  an  ai)plication  for  rehearing  that  part  of  any 
case  relating  to  reparation   or  other  damage  for  past 
injuries  must  be  filed  with  the  Commission  within  60 
days  after  service  of  the  order  therein;  that  if  such  ap- 
plication be  to  reopen  the  proceeding  for  further  evi- 
dence, the  nature  and  purpose  of  such  evidence  must  be 
briefly   stated,  and  the   same  must  not  be  cumulative- 
that  if  the  application  be  for  a  rehearing,  the  petition 

30.     Section   16a  of  the   Act   to      Regulate  Commerco,   Appendix  A, 

in}ra. 


686  Duties   to   Interstate    Shippers.  [*^  -^11 

must  specify  the  matters  claimed  to  be  erroneously  de- 
cided with  a  brief  statement  of  the  alleged  errors;  that 
if  any  order  of  the  Commission  is  sought  to  be  reversed, 
changed,  or  modified  on  account  of  facts  and  circum- 
stances arising  subsequent  to  the  hearing,  or  of  conse- 
quences resulting  from  compliance  therewith,  the  matters 
relied  upon  by  the  applicant  must  be  fully  set  forth; 
that  at  least  10  copies  of  all  such  applications  must  be 
tiled  with  the  Commission  and  be  accompanied  by  notice 
showing  service  upon  all  opposing  counsel;  that  such 
adverse  parties  may  tile  a  reply  to  such  petition  for  re- 
hearing or  reopening  within  10  days  from  the  date  of 
service  upon  them  and  that  such  reply  must  be  served 
upon  the  attorney  for  petitioner  and  10  copies  must  be 
lih'd  witli  the  Commission. ^^ 

§  412.  Employment  of  Attorneys  to  Aid  Commis- 
sion Authorized.  The  Commission  may  employ  such 
attorneys  as  it  iinds  necessary  for  proper  legal  aid  and 
service  of  the  Commission  or  its  members  in  the  conduct 
of  their  work,  or  for  proper  representation  of  the  public 
interest  in  any  investigation  made  by  any  cases  or  pro- 
ceedings pending  before  it,  either  at  the  Commission's 
own  initiative  or  upon  complaint,  or  to  appear  for  and 
represent  the  Commission  in  any  case  pending  in  the 
courts.^" 

31.    Rules  of  Practice,  Appendix  32.      Section    16    of   the    Act   to 

E,   infra.  Regulate  Commerce,  Appendix   A, 

infia. 


PART  THREE 


PERSONAL  INJURIES  TO  INTERSTATE 
EMPLOYES  OF  COMMON  CARRIERS 


THE   FEDERAL  EMPLOYERS'   LIABILITY   ACT. 


(587) 


CHAPTER  XXI 

Scope,  Purpose,   Validity   and   Effect   of   Federal 
TjIabilii'v  Af;T. 

Sec.  413.  Source,  Nature  and  Extent  of  Power  of  Congre-ss  to  Regulate 
Relation  of  Master  and  Servant. 

Sec.  414.    Employers'  Liability  Act  of  1906  Invalid. 

Sec.  415.    Second    Federal    Employers'   Liability   Act   Valid. 

Sec.  416.    Scope  of  the  Federal  Employers'  Liability  Act. 

Sec.  417.  Purpose  of  Congress  in  Enactment  of  Federal  Act— Uniform- 
ity and  Modification  of  Common  Law  Rules. 

Sec.  418.    Defects  In  Act  of  1908  and  Amendments  of  1910. 

Sec.  419.  Congressional  Purpose  in  the  Enactment  of  the  Amend- 
ments of  1910. 

Sec.  420.  Extent  of  Power  Exercised  by  Congress  In  Passing  the  Lia- 
bility Act. 

Sec.  421.  Exclusiveness  of  the  Federal  Act  and  its  Effect  upon  State 
T..aws. 

Sec.  422.  State  Workmen's  Compensation  Laws  Superseded  by  Federal 
Act   as  to   Injuries  Arising  in   Interstate  Commerce. 

Sec.  42.?.  Common  Law  Right  of  Parents  to  Recover  for  Loss  of  Ser- 
vices of  Minor   Employe   Injured.    Superseded. 

Sec.  424.  Remedy  Provided  by  Statute  Limited  to  Employes  Only  of 
Common  Carriers  by  Railroad. 

Sec.  425.  Employes  on  Ocean-going  Ships  Owned  by  Common  Carriers 
by  Railroads  not  Included. 

Sec.  426.    Decisions  of  National  Courts  Construing  Act  Control. 

Sec.  427.    Laws  of  State  Control  as  to  Procedure. 

Sec.  428.    Fellow  Servant  Rule  Abolished  as  to  all  Interstate  Employes. 

§  413.  Source,  Nature  and  Extent  of  Power  of  Con- 
gress to  Regulate  Relation  of  Master  and  Servant.  Con- 
gress is  authorized  by  the  commerce  clause  of  the  Con- 
stitution to  regulate  interstate  and  foreign  commerce, 
and  to  enact  all  laws  necessary  and  proper  for  carrying 
into  execution  the  powers  vested  in  it  by  the  Constitu- 
tion. The  regulation  of  the  relation  of  master  and  ser- 
vant to  the  extent  that  the  legislation  adopted  by  Con- 
gress on  that  subiect  is  confined  to  interstate  and  foreign 
commerce,  is  within  the  constitutional  grant  to  regulate 
commerce.^ 

1.     Texas  &  P.  R.  Co.  v.  Rigsby,       Sup.  Ct.  482;    Houston,  E.  &  W.  T. 
241    IT.    S.    33.    60   L.    Ed.    874,    36       R.    Co.    v.    United    States,    234    U. 

(689) 

1    Control    rarrlers    44 


690 


Injuries   to   Interstate   Employes.         [^  413 


Congress  cannot,  however,  legislate  upon  the  re- 
lationship of  master  and  servant,  as  such,  within  the  do- 
main of  the  states;  for  its  power  is  limited  to  the  regu- 
lation of  interstate  and  foreign  commerce,  the  enactment 
of  laws  appropriate  to  the  exercise  of  such  power,  and 
to  prescribe  the  rules  by  which  commerce  shall  be  gov- 
erned.- If  persons  otherwise  within  the  exclusive  control 
of  the  states'  become  engaged  in  interstate  commerce, 
or  in  work  which  is  so  closely  connected  therewith  as 
to  be  in  a  practical  sense  and  in  legal  contemplation, 
a  part  of  interstate  commerce,  then  they  subject  them- 
selves to  the  potential  control  of  Congress."  It  follows, 
therefore,  that  Congress  may  regulate  the  liabilities  of 
masters  to  their  servants  for  personal  injuries  when 
both  are  engaged  in  interstate  commerce,  or  even  when 
engaged  in  intrastate  commerce  if  such  work  is  so  close- 
ly or  directly  connected  with  interstate  commerce  that 
the  safety  of  the  one  is  dependent  upon  the  other.' 


S.  342,  58  L.  Ed.  1341,  34  Sup.  Ct. 
833;  Baltimore  &  0.  R.  Co.  v. 
Interstate  Commerce  Commission, 
221  U.  S.  612,  55  L.  Ed.  878,  31 
Sup.  Ct.  621;  Johnson  v.  South- 
ern Pac.  Co.,  196  U.  S.  1,  49  L. 
Ed.  363,  25  Sup.  Ct.  158;  Employ- 
ers' Liability  Cases,  207  U.  S.  463, 
52  L.  Ed.  297,  28  Sup.  Ct.  141. 

2.  Wilson  V.  New,  243  U.  S.  332, 
61  L.  Ed.  755,  37  Sup.  Ct.  298,  Ann. 
Cas.  1918 A  1024;  Hoke  v.  United 
States,  227  U.  S.  308,  57  L.  Ed. 
523,  33  Sup.  Ct.  281,  43  L.  R.  A. 
(N.  S.)  906,  Ann.  Cas.  1913E  905; 
Hipolite  Egg  Co.  v.  United  States. 
220  U.  S.  45,  55  L.  Ed.  364,  31  Sup. 
Ct.  364;  Northern  Securities  Co. 
V.  United  States.  193  U.  S.  197,  48 
L.  Ed.  679.  24  Sup.  Ct.  436;  In 
re  Debs,  158  U.  S.  564,  39  L.  Ed. 
1092,  15  Sup.  Ct.  900;  Gloucester 
Ferry  Co.  v.  State,  114  U.  S.  196, 
29  L.  Ed.  158,  5  Sup.  Ct  826; 
County  of  Mobile  v.  Kimball,  102 
U.  S.  691,  26  L.  Ed.  238. 


3.  Employers  Liability  Cases, 
207  U.  S.  463,  52  L.  Ed.  297,  28 
Sup.  Ct.  141. 

4.  In  re  Second  Employers'  Li- 
ability Cases.  223  U.  S.  1,  56  L. 
Ed.  327,  32  Sup.  Ct.  169,  1  N.  C. 
C.  A.  875,  38  L.  R.  A.  (N.  S.)  44; 
Southern  R.  Co.  v.  United  States, 
222  U.  S.  20,  56  L.  Ed.  72,  32  Sup. 
Ct.  2;  Adair  v.  United  States,  208 
U.  S.  161,  52  L.  Ed.  436,  28  Sup. 
Ct.  277,  13  Ann.  Cas.  764;  Schlem- 
mer  v.  Buffalo,  R.  &  P.  R.  Co.,  205 
U.  S.  1,  51  L.  Ed.  681,  27  Sup.  Ct. 
407;  Nashville,  C.  &  St.  L.  Ry.  Co. 
V.  Alabama,  128  U.  S.  96,  32  ^. 
Ed.  352,  9  Sup.  Ct.  28;  Smith  v. 
Alabama,  124  U.  S.  465,  31  L.  Ed. 
508,  8  Sup.  Ct.  564;  Sherlock  v. 
Ailing,  93  U.  S.  99,  23  L.  Ed.  819; 
Cooley  V.  Board  Wardens  Port  cf 
Philadelphia,  12  How.  (U.  S.)  299, 
13  L.  Ed.  996. 

5.  Illinois  Cent.  R.  Co.  v.  Beh- 
rens,  233  IT.  S.  473.  58  L.  Ed.  1051, 
34  Sup.  Ct.  646.  10  N.  C.  C.  A.  153, 


>§  41 4 J     Scope,   Vaudity   and   Effect   of  Act. 


G91 


§  414.  Employers'  Liability  Act  of  1906  Invalid. 
The  first  Federal  Employers'  Liability  Act  passed  by 
Congress  and  approved  June  11,  1906,  was  declared  in- 
valid by  the  national  Supreme  Court,  because  its  terrns 
included  all  who  engaged  in  interstate  commerce  between 
the  states — hacks,  ferries,  bridges,  trolley  lines,  tele- 
phone and  telegraph  companies,  and  railroads — as  car- 
riers as  well  as  all  their  employes,  regardless  of  whether 
the  employer  was  engaged  in  or  the  injured  servant  was 
employed  in  interstate  commerce  at  the  time  of  the  in- 
jury."    The  first  act  included  every  individual  or  corijo- 


Ann.  Cas.  1914C  163,  in  which  the 
Court  said:  "We  entertain  no 
doubt  tliat  the  liability  of  the 
carrier  for  Injuries  suffered  by  a 
member  of  the  crew  in  the  course 
of  its  general  work  was  subject 
to  regulation  by  Congress,  wheth- 
er the  particular  service  being 
performed  at  the  time  of  the  in- 
jury, isolatedly  considered,  was  in 
interstate  or  intrastate  com- 
merce." To  the  same  effect: 
Southern  R.  Co.  v.  United  States, 
222  U.  S.  20,  56  L.  Ed.  72,  32  Sup. 
Ct.  2. 

6.  First  Employers'  Liability 
Cases.  207  U.  S.  463,  52  L.  Ed. 
297,  28  Sup.  Ct.  141,  aff'g  Howard 
V.  Illinois  Cent.  R.  Co.,  148  Fed. 
997,  and  Brooks  v.  Southern  Pac. 
Co.,  148  Fed.  986.  "But  it  is  ar- 
gued," said  Mr.  Chief  .Justice 
White,  "even  though  it  be  con- 
ceded that  the  power  of  Congress 
in  matters  of  interstate  com- 
merce, that  power  cannot  be  law- 
fully extended  so  as  to  Include  the 
regulation  of  the  relation  of  mas- 
ter and  servant,  or  of  servants 
among  themselves,  as  to  things 
which  are  not  interstate  com- 
merce. From  this  it  is  insisted 
the  repugnancy  of  the  act  to  the 
Constitution  is  clearly  shown,  as 
the  face  of  the  act  makes  it  cer- 


tain that  the  power  which  It  as- 
serts extends  not  only  to  the  re- 
lation of  master  and  servant  and 
servants  among  themselves  as  to 
things  which  are  wholly  inter- 
state commerce,  but  embraces 
those  relations  as  to  matters  and 
things  domestic  in  their  charac- 
ter and  which  do  not  come  within 
the  authority  of  Congress.  To 
test  this  proposition  requires  I's 
to  consider  the  text  of  the  act. 
From  the  first  section  it  is  cer- 
tain that  the  act  extends  to  every 
individual  or  corporation  who 
may  engage  in  interstate  com- 
merce as  a  common  carrier.  Its 
all-embracing  words  leave  no 
room  for  any  other  conclusion.  It 
may  include,  for  example,  steam 
railroads,  telegraph  lines,  tele- 
phone lines,  the  express  business, 
vessels  of  every  kind,  whether 
steam  or  sail,  ferries,  bridges, 
wagon  lines,  carriages,  trolley 
lines,  etc.  Now.  the  rule  which 
the  statute  establishes  for  the 
purpose  of  determining  whether 
all  the  subjects  to  which  it  re- 
lates are  to  be  controlled  by  its 
provisions  is  that  any  one  who 
conducts  such  business  be  a  'com- 
mon carrier  engaged  in  trade  or 
commerce  in  the  District  of  Co- 
lumbia,   or    in    any    Territory    of 


692 


Injuries   to   Interstate   Employes.         [§  414 


ration  engaged  in  interstate  commerce  between  the  states 
and  all  their  employes. 

This  statute  was  broader  than  the  constitutional 
power  delegated  by  the  states  to  the  national  govern- 
ment, and  hence  was  invalid  as  being  beyond  the  power 
o-iven  to  Congress.    The  act,  however,  was  declared  valid 


the  United  States,  or  between  the 
several  States,'  etc.     That  is,  the 
subjects    stated    all    come    within 
the  statute  when  the  individual  or 
corporation    is   a  common   carrier 
who  engages  in  trade  or  commerce 
between    the    States,    etc.      From 
this    it    follows    that    the    statute 
deals  with  all  the  concerns  of  the 
individuals     or     corporations     to 
which  it  relates  if  they  engage  as 
common  carriers  in  trade  or  com- 
merce   between    the    States,    etc., 
and  does  not  confine  itself  to  the 
interstate       commerce       business 
which  may  be  done  by  such  per- 
sons.    Stated  in  another  form,  the 
statute   is   addressed   to   the  indi- 
viduals  or   corporations   who   are 
engaged    in    interstate    commerce 
and  is  not  confined  solely  to  reg- 
ulating   the    interstate    commerce 
business   which   may   be   done   by 
such  persons.     Stated  in   another 
form,  the  statute  is  addressed  to 
the     individuals     or     corporations 
who     are    engaged     in     interstate 
commerce    and     is     not     confined 
solely  to  regulating  the  interstate 
commerce     business    which    such 
persons   may   do — that   is,   it   reg- 
ulf.tes    the    persons    because    they 
engage     in     interstate     commerce 
and   does   not   alone   regulate   the 
business    of    interstate   commerce. 
And    the    conclusion    thus    stated, 
which  flows  from  the  text  of  the 
act  concerning  the  Individuals  or 
corporations  to  which  it  is  made 
to  apply,  is  further  demonstrated 
by  a  consideration  of  the  text  of 


the   statute   defining   the   servants 
to  whom  it  relates.    Thus  the  lia- 
bility of  a  common  carrier  is  de- 
clared  to  be  in  favor  of  'any  of 
its  employes.'     As  the  word  'any' 
is  unqualified,  it  follows  that  lia- 
bility  to   the   servant   is   coexten- 
sive   with    the    business    done    by 
the   employers   whom   the   statute 
embraces;    that  is,  it  is  in  favor 
of  any  of  the  employes  of  all  car- 
riers  who    engage     in     interstate 
commerce.     This  also  is  the  rule 
as    to    one   who   otherwise    would 
be  a  fellow  servant,  by  whose  neg- 
ligence the  injury  or   death  may 
have  been  occasioned,  since  it  is 
provided    that    the    right    to    re- 
cover on  the  part  of  any  servant 
will  exist,  although  the  injury  for 
which  the  carrier  is  to  be  held  re- 
sulted from  'the  negligence  of  any 
of  its  officers,  agents  or  employes.' 
The  act  then   being  addressed   to 
all    common    carriers   engaged    in 
interstate    commerce,   and    impos- 
ing a  liability  upon   them   in   fa- 
vor   of    any    of    their    employes, 
without    qualification    or     restric- 
tion as  to  the  business  in  which 
the  carriers  or  their  employes  may 
be    engaged    at   the   time    of   the 
Injury,  of  necessity  includes  sub- 
jects wholly  outside  of  the  power 
of  Congress  to  regulate  commerce. 
Without  stopping  to  consider  the 
numerous     instances     where     al- 
though a   common   carrier   is   en- 
gaged in  interstate  commerce  such 
carrier    may    in    the    nature    of 
things   also    transact   busines   not 


<^  414]     Scope,   Validity   and   Effect   of  Act. 


G93 


as  to  the  District  of  Columbia  and  territories  of  the 
United  States,  for  the  reason  that  Congress  has  plenar}- 
powers  in  all  matters  relating  to  such  territories.  In 
the  District  of  Columbia,  the  Panama  Canal  Zone,  Alas- 
ka, Porto  Rico,  Hawaiian  Islands  and  Philippine 
Islands,  by  the  Act  of  190G  every  common  (carrier  en- 
gaged in  trade  or  commerce  was  liable  "to  any  of  its 
employes.'"  As  to  carriers  engaged  in  commerce  be- 
tween the  states,  the  court,  in  the  majority  opinion,  held 
that  matters  under  the  jurisdiction  of  the  national  gov- 
ernment and  those  within  the  exclusive  jurisdiction  of 
the  states,  were  so  blended  in  the  act  that  they  could  not 
be  separated  by  the  court,  and  therefore,  the  whole  act 
as  to  common  carriers  and  their  employes  engaged  in 
commerce  between  the  states,  must  be  held  void.  The 
part  of  the  act  applying  to  territories,  was  held  to  be 


interstate  commerce,  although 
rectly  be  related  to  interstate  com- 
merce, a  few  illustrations  showing 
the  operation  of  the  statute  as  to 
matters  wholly  independent  of 
interstate  commerce  will  serve  to 
make  clear  the  extent  of  the 
power  which  is  exerted  by  the 
statute.  Take  a  railroad  engaged 
in  interstate  commerce,  having  a 
purely  local  branch  operated 
wholly  within  a  State.  Take 
again  the  same  road  having  shops 
for  repairs,  and  it  may  be  for  con- 
struction work,  as  well  as  a  large 
accounting  and  clerical  force,  and 
having,  it  may  be,  storage  eleva- 
tors and  warehouses,  not  to  sug- 
gest besides  the  possibility  of  its 
being  engaged  in  other  independ- 
ent enterprises.  Take  a  telegraph 
company  engaged  in  the  trans- 
mission of  interstate  and  local 
messages.  Take  an  express  com- 
pany engaged  in  local  as  well  as 
in  interstate  business.  Take  a 
trolley  line  moving  wholly  within 
a  State  as  to  a  large  part  of  its 


business  and  yet  as  to  the  re- 
mainder crossing  the  state  line. 
As  the  act  thus  includes  rnany 
subjects  wholly  beyond  the  power 
to  regulate  commerce  and  depends 
for  its  sanction  upon  that  author- 
ity, it  results  that  the  act  is 
repugnant  to  the  Constitution." 

7.  The  1906  Act  was  valid  as  to 
these  territories:  El  Paso  &  N.  E. 
R.  Co.  V.  Gutierrez,  215  U.  S.  87. 
54  L.  Ed.  106,  30  Sup.  Ct.  21,  aff'g 
102  Tex.  378,  117  S.  W.  426;  At- 
chison, T.  &  S.  F.  R.  Co.  V.  Mills. 
49  Tex.  Civ.  App.  349,  108  S.  W. 
480. 

The  Federal  Em.)loyers'  Liabil- 
ity Act  of  1908  did  not  repeal  that 
part  of  the  Employers'  Liability 
Act  of  1906  which  related  to  the 
District  of  Columbia  and  the  Ter- 
ritories. A  seaman  employed  on 
a  vessel  engaged  in  commerce 
within  the  territory  of  Alaska  was 
permitted  to  recover  under  the 
Act    of    1906.      Walsh    v.    Alaska 

Steamship   Co..   Wash.   , 

172   Pac.   269. 


694:  Inwkies   to   Interstate    Employes.         [§  il-J: 

capable  of  separation  by  a  judicial  interpretation,  and, 
as  so  separated,  it  was  held  valid. 

In  the  1906  Act  Congress  attempted  to  legislate 
upon  a  subject  matter  wholly  within  the  power  of  the 
state  and  so  interblended  that  power  with  its  juris- 
diction over  interstate  connuerce,  that  the  several  claus- 
es could  not  be  separated,  and  that  i)art  covering  inter- 
state commerce  remain  valid. 

§  415.  Second  Federal  Employers'  Liability  Act 
Valid.  After  the  national  Supreme  Court  declared  the 
Act  of  1900  invalid  on  January  6,  1908,  for  the  reasons 
mentioned  in  the  preceding  jjaragraph.  Congress  passed 
the  Second  Federal  Employers'  Liability  Act,^  which 
was  approved  April  22,  1908.^ 

The  first  section  provides  that  every  common  car- 
rier by  railroad  while  engaged  in  interstate  commerce, 
shall  be  liable  to  every  employe  while  employed  by  such 
can'ier  in  such  commerce  or  in  case  of  his  death,  to 
certain  beneficiaries  therein  named,  for  such  injury  or 
death,  resulting  in  whole  or  in  part,  from  the  negli- 
gence of  the  carrier,  or  its  employes,  or  by  defects  or 
insufficiencies  due  to  negligence  in  any  of  its  equipments 
or  property.  The  second  section  provides  that  every 
common  carrier  by  railroad  on  lands  of  the  United  States 
other  than  states  shall  be  liable  in  the  same  way  to  any 
of  its  employes.  The  third  section  prescribes  that  con- 
tributory negligence  shall  not  bar  recovery,  but   shall 

8.  35  Stat,  at  L.  65,  Appendix  F,  ing  the  act.  Judge  Nortonl,  in 
infra.  that   case,   held   that   the   remedy 

The    federal    act    is   a   remedial  provided    "oy    the    act    was    exclu- 

statute  and  should  have  a  liberal  sive  and  that  a  switchman   on   a 

construction  to  advance  the  rem-  freight  train  carrying  freight  from 

edy   proposed   and   to   correct   the  a   point  in   a  state  to  a  point  in 

evils    against    which    it    was    di-  another  was  engaged  in  interstate 

rected.     Baltimore  &  0.  R.  Co.  v.  commerce    and    that    a    suit    by    a 

Branson,   Md.    — — ,    98    Atl.  widow  suing  in  her  own  capacity 

225.  could  not  be  maintained;   in  case 

9.  The  entire  act  without  the  of  death,  suit  must  be  brought  by 
1910  amendments  is  quoted  in  full  the  "personal  representative"  as 
in  Rich  v.  St.  Louis  &  S.  F.  R.  Co.,  required  by  the  act.  Judge  Nor- 
166  Mo.  App.  379,  148  S.  W.  1011,  toni's  ruling  has  since,  in  other 
which  was  the  first  case  by  the  cases,  been  sustained  by  the  na- 
Missouri  appellate  courts  constru-  tional    Supreme    Court. 


§  415]     Scope,    Validity    and    Effect   of   Act.  695 

only  diminish  the  dama^os,  cxr-ept  that  no  employe  in- 
jured ()!•  killed  where  the  violation  of  a  safety  law  for 
employes  contrilniled  to  the  injury,  shall  he  held  to 
have  heeii  guilty  of  contrihutory  negligence.  The  fourth 
section  provides  tliat  assinni)tion  of  risk  shall  not  he  a 
defense,  where  the  violation  of  a  safety  law  coutrihuted 
to  the  accident.  The  fifth  section  declares  all  contract 
or  devices  intended  to  exempt  the  carrier  from  liahility 
nnder  the  act  to  be  void,  except  that  the  carrier  may 
plead  as  a  set-off  any  sum  it  paid  to  the  injured  em- 
ploye as  insurance  or  relief  fund.  Section  G  i)rovides 
that  any  action  nnder  the  act  is  barred  after  two  years 
Section  7  declares  that  the  term  "common  carrier,"  as 
used  in  the  statute,  shall  include  the  receiver  or  re- 
ceivers or  other  persons  or  corporations  charged  with 
the  duty  of  the  management  and  operation  of  the  busi- 
ness of  a  common  carrier.  Section  8  provides  that  the 
act  does  not  limit  the  obligation  of  a  common  carrier 
under  any  other  federal  law  or  affect  any  i)en(ling  suits 
under  the  1906  Act. 

After  conflictiiig  dicisions  by  state  and  federal 
courts,  the  constitutionality  and  validity  of  this  statute 
in  all  its  parts  was  presented  to  the  Supreme  Court  of 
the  United  States  and  the  act  was  declared  constitu- 
tional on  January  15,  1912.'"  In  a  later  decision  the 
Supreme  Court  held  Section  5  of  the  national  act  valid. '^ 
These  decisions  render  any  discussion  as  to  the  validity 
of  the  Act  of  190<S  purely  academic  and  such  questions 
are  now,  so  far  as  all  other  courts  are  concerned,  final- 
ly and  conclusively  decided.  In  a  i)loneer  case  involv- 
ing the  validity  of  the  Act,  Judge  Trieber,  in  holdino- 
that  tlic  statute  was  a  jiroper  exercise  of  tlic  ])ower  of 
(^ongress  under  the  commerce  clause,  said:'-  "As  the 
powers  of  Congress  are  limited  to  those  granted  by  the 
Constitution,  and  the  only  provision  of  that  instrument 

10.    In    re    Second     Employers'  11.    Philadelphia,  P.  &  W.  R.  Co. 

Liability  Cases,  223  U.  S.  1,  56  v.  Schubert,  224  U.  S.  fiO.''..  .^6  L. 
L.  Ed.  327,  32  Sup.  Ct.  169,  1  Ed.  911,  32  Sup.  Ct.  589,  1  N.  C. 
N.   C.   C.   A.   875.   38   L.   R.   A.    (N.       C.    A.   892. 

S)    44.  12.    Watson    v.    St.    Louis.    I.   M 

&  S.  Ry.  Co.,  169  Fed.  942. 


696  Injuries   to   Interstatk    Employes.         [§  415 

authorizing"  sueli  legislation  is  the  commerce  clause,  and 
that  is  limited  to  'commerce  with  foreign  nations  and 
among  the  several  states  and  Indian  tribes,'  it  can,  of* 
course,  only  legislate  for  the  safety  of  those  employed 
in  those  branches  of  commerce,  and  not  in  intrastate 
can'iage.  That  is  all  the  act  under  consideration  at- 
tempts to  do.  It  is  limited  to  those  who  are  in  the  em- 
ployment of  railroads  engaged  in  commerce  between 
the  states  and  while  they  are  actually  engaged  in  such 
employment.  What  difference  does  it  make  what  the 
employment  of  the  fellow  servant  is — whether  inter- 
state or  intrastate?  The  safety  of  the  employes  of  an 
interstate  train,  as  well  as  of  the  passengers  intrusted 
to  their  care,  can  in  no  wise  be  affected  by  that.  Con- 
gress having  the  exclusive  powder  to  regulate  interstate 
commerce,  that  power  necessarily  includes  the  right  to 
regulate  the  relation  of  the  master  and  servant  operating 
such  trains  and  legislate  for  the  safety  of  the  employes. 
Johnson  v.  Southern  Pacific  Ry.  Co.,  supra;  Schlemmer 
V.  Buffalo,  etc.,  Ry.  Co.,  205  U.'  S.  1,  27  Sup.  Ct.  407,  51 
L.  Ed.  681;  Employers'  Liability  Cases,  supra.  If  the 
contention  of  defendant  is  sustained,  the  effect  would 
be  that  although  the  employe  of  a  carrier  by  rail  en- 
gaged in  interstate  transportation  is  injured  while  en- 
gaged on  an  interstate  train,  if  the  cause  of  the  injury 
was  the  negligence  of  a  fellow  servant  not  engaged  at 
the  time  in  interstate  work,  Congress  is  powerless  to 
provide  for  a  recovery  of  compensation  for  the  injuries 
suffered.  Therefore,  if  an  engineer  or  fireman  on  an 
interstate  train  is  injured  by  reason  of  the  negligence  of  a 
switchman  or  other  employe  of  a  train  operated  on  a 
branch  line,  which  is  used  exclusively  for  intrastate 
business,  the  failure  of  Congress  to  except  such  acci- 
dents from  the  provisions  of  the  statute  makes  it  un- 
constitutional as  being  in  excess  of  its  powers  under 
the  Constitution.  The  same  result  would  follow  if  a 
telegraph  operator  on  such  a  branch  line  fails  to  trans- 
mit or  deliver  a  message  from  the  train  dispatcher  di- 
recting the  conductor  of  the  interstate  train  to  go  on 
a  siding  for  the  purpose  of  letting  an  intrastate  train 
pass  on  the  main  line,  and  by  reason  of  such  negligence 


§  415J     Scope,   Vaudiit   and   Effect   of   Act.  697 

tliere  is  a  collision.     In  State  v.  Chicago,  Milwaukee  & 
St.  Paul  R.  Co.  (Wis.)  117  N.  W.  686,  the  court,  speak- 
ing of  a  similar  question,  said:     'The  direction  and  dis- 
patching of  every  train  on  an  interstate  railway  neces- 
sarily involves  knowledge  in  the  train  disi)atcher  of  all 
other  trains  which  are  in  the  same  vicinity  at  the  same 
time,  and  also  an  ability  to  control   such   other  trains. 
An  interstate  train  from  Milwaukee  to  Chicago  cannot 
be  safely  forwarded  if,  under  the  direction  of  a  separate 
employe,  a  local  train  may  be  moving  between  Milwau- 
kee and  Racine  over  the  same  track  at  the  same  time, 
or  nearly  so.    The  very  switching  at  local  stations  must 
be  within  the  knowledge  and  under  the  control  of  him 
wlio  is  to  decide  upon  and  direct  the  most  important  of 
interstate  transportation.    Obviously  division  of  author- 
ity over  these   subjects  would   be   fraught   with    great 
perils  and  delays  to  both  kinds  of  transportation.    Hard- 
ly any  act  of  a  train  dispatcher  on  a  busy  railroad  can 
be  conceived  which  does  not  affect  both  interstate  and 
domestic  commerce.     He  cannot  move  or  stop  the  most 
distinctively  local  train  without  affecting  the  interstate 
train,  or  vice  versa.    No  extra  or  special  can  be  put  on 
the   division   without   adjustment   of  other   trains.      Of 
course,  also,  every  interstate  train  carries  some  purely 
intrastate  freight  or  passengers.    Many  purely  domestic 
trains  carry   some  freight  or  passengers   in   transit   to 
extrastate  destination.     It  would  seem  that  any  sever- 
ance of  control  over  state  from  interstate  trains  involved 
so  much  of  confusion  and  probability  of  danger,  and  its 
possibility  even  is  so   doubtful   and   experimental   that 
no  Legislature  would  absolutely  precipitate  it  without 
careful  consideration  nor  without  providing  in  the  act 
for  the  event  of  failure  of  such  experiments.'     There  is 
nothing  in  the  Employers'  Liability  Cases  to  warrant 
the  construction  claimed  on  behalf  of  defendant.     What 
the  court  did  decide  in  that  case  was  that  as  the  act 
under  consideration  included  all  employes  of  an  inter- 
state carrier,  even  if  they  (the  employes)  were  engaged 
in  an  employment  wholly  disconnected  from  the  inter- 
state business,  citing  'employes  of  a  purely  local  branch 
operated  wholly  within  a  state,  employes  in  repair  shops, 

LAW   LIBRARY 

OF 

LOS  ANGELES  COUNTY 


698  Injuries   to   Inteestatk    Employes.         [^  -1-15 

constnietion  work,  accoimting  and  cleiical  work,  storage 
elevators  and  warelionses,  not  to  suggest,  besides,  the 
possibility  of  it  being  engaged  in  other  independent 
enterprises,'  and  then  held  that:  'As  the  act  thus  in- 
cludes many  subjects  wholly  beyond  the  power  to  regu- 
late commerce  and  depends  for  its  sanction  upon  that 
authority,  it  results  that  the  act  is  repugnant  to  the 
Constitution.'  No  doubt  Congress,  had  it  seen  proper 
to  do  so,  could  have  limited  it  to  certain  fellow  servants, 
such  as  are  employed  only  in  interstate  service  or  in  the 
same  or  different  departments  of  the  common  employ- 
ment, as  has  been  done  by  some  of  the  states.  See  acts 
of  Arkansas,  Indiana,  Massachusetts,  Mississippi,  Mis- 
souri, Montana,  Ohio,  Oregon,  South  Carolina,  Texas, 
Utah,  and  Virginia.  But  the  failure  to  do  so  cannot  in- 
validate the  act.  In  Northern  Securities  Co.  v.  United 
States,  192  U.  S.  197,  331,  24  Sup.  Ct.  436,.  48  L.  Ed. 
679,  the  contention  was  that  the  defendant  was  not  a 
railroad  company,  that  it  was  a  corporation  created 
by  one  of  the  states  and  its  corporate  powers  limited  to 
buying,  selling,  and  holding  stock,  bonds,  and  other 
securities,  and  for  that  reason  Congress  had  no  power  to 
regulate  it;  but  the  court  held  that,  under  the  power  to 
regulate  commerce  among  the  several  states.  Congress 
had  the  authority  to  enact  the  statute,  and  that  it  ap- 
plied to  the  Securities  Company.  Another  case  in  which 
one  of  the  issues  was  very  much  like  that  now  under 
consideration  is  Loewe  v.  Lawlor,  208  U.  S.  274,  301,  28 
Sup.  Ct.  301,  52  L.  Ed.  488.  It  was  there  claimed  that 
the  Sherman  Anti-Trust  Act  July  2,  1890,  c.  647,  26  Stat. 
209,  was  not  applicable,  or,  if  applicable,  not  within  the 
power  of  Congress  to  enact  it,  because  the  defendants 
were  not  themselves  engaged  in  interstate  commerce; 
but  the  contention  was  by  the  court  overruled.  The 
same  conclusion  was  reached  in  United  States  v.  Debs 
(C.  C.)  64  Fed.  724,  745,  755,  affirmed  in  158  U.  S.  564, 
15  Sup.  Ct.  900,  39  L.  Ed.  1092.  Other  statutes  of  sim- 
ilar nature  have  been  repeatedly  enacted  by  Congress, 
and,  when  questioned,  sustained.  Act  July  3,  1866,  c. 
162,  14  Stat.  81,  digested  as  sections  5353,  5354,  Rev. 
St.  makes  it  a  criminal  oifense  to  transport  or  ship,  by 


§  4 IT) J     Scope,   Validity    and   Effect   of   Act.  699 

a  carrier  engaged  in  interstate  transportation,  dangerous 
explosives,  regardless  of  the  fact  whether  the  shipment 
is  interstate  or  intrastate,  provided  the  carrier  is  at  the 
time  engaged  in  interstate  transportation.  The  grava- 
men of  the  offense  is  to  transport,  or  cause  to  be  trans- 
ported, any  of  the  prohibited  articles  on  any  vessel  or 
vehicle  employed  in  interstate  traffic.  It  was  the  pas- 
sengers and  employes  on  such  vehicles  or  vessels  whom 
Congress  sought  to  protect,  and  under  the  commerce 
clause  had  the  right  to  protect.  The  danger  to  them 
was  as  great  if  the  explosion  occurred  from  an  intra- 
state shipment  as  an  interstate.  The  constitutional  limi- 
tation was  fully  met  by  confining  the  provisions  of  the 
act  to  vehicles  employed  at  the  time  in  interstate  traffic. 
The  constitutionality  of  this  act  seems  never  to  have 
been  questioned.  In  fact,  the  only  reported  case  con- 
struing this  act,  which  the  court  has  been  able  to  find, 
is  United  States  v.  Saul  (D.  C),  58  Fed.  763.  In  Act 
Cong.  December  21,  1898,  c.  28,  30  Stat.  755,  763,  'An 
act  to  amend  the  law  relating  to  American  seamen,  for 
the  protection  of  such  seamen,  and  to  promote  com- 
merce,' the  language  used  applied  to  all  seamen,  regard- 
less of  whether  the  vessel  on  which  they  were  employed 
was  engaged  in  interstate  or  intrastate  commerce.  In 
Patterson  v.  Bark  Eudora,  190  U.  S.  169,  179,  23  Sup. 
Ct.  821,  47  L.  Ed.  1002,  the  constitutionality  of  this 
act  was  attacked  upon  the  ground  now  raised  and  also 
that  it  applied  to  foreign  vessels.  While  the  court  de- 
clined to  determine  what  its  decision  might  be  in  a 
case  relating  to  contracts  of  sailors  for  services  to  be 
performed  wholly  within  the  state,  as  that  question 
was  not  before  it,  it  sustained  the  constitutionality  of 
the  act  in  an  action  in  which  the  vessel  was  engaged 
in  interstate  commerce,  and  whether  the  vessel  is  for- 
eign or  not.  The  argument  of  counsel  for  the  govern- 
ment, cited  with  approval  by  the  court,  might  well  be 
applied  here:  ']\roreover,  as  90  per  cent,  of  all  com- 
merce in  oui'  ports  is  conducted  in  foreign  vessels,  it 
must  be  obvious  tliat  their  exemption  from  these  ship- 
ping laws  will  go  far  to  embarrass  domestic  vessels  in 
obtaining  their  quota  of  seaman.    To  the  average  sailor 


700  Injuries   to   Inteestate   Employes.         [^  415 

it  is  a  consideration  while  in  port  to  have  his  wages  in 
part  prepaid;  and  if,  in  a  large  port  like  New  York,  90 
per  cent,  of  the  vessels  are  permitted  to  prepay  sneh 
seamen  as  ship  npon  them,  and  the  other  10  per  cent., 
being  American  vessels,  cannot  thus  prepay,  it  will  be 
exceedingly  difficult  for  American  vessels  to  obtain 
crews.  This  practical  consideration,  presumably,  ap- 
pealed to  Congress  and  fully  justified  the  provisions 
herein  contained.'  190  U.  S.  179,  23  Sup.  Ct.  824,  47  L. 
Ed.  1002.  It  is  well  known  that,  while  there  may  be 
some  few  railroads  engaged  wholly  in  intrastate  traffic, 
there  are  practically  none  engaged  in  interstate  trans- 
portation which  is  not  also  engaged  in  intrastate  car- 
riage of  freight  or  passengers.  To  limit  the  liability 
of  the  railroad  to  its  employes  on  a  train  employed  in 
interstate  traffic  for  injuries  caused  by  fellow  servants 
engaged  in  like  employment  would  in  many  instances 
make  the  act  valueless  and  of  no  benefit  to  the  employe. 
In  the  language  above  quoted:  'This  practical  consider- 
ation, presumably,  appealed  to  Congress  and  fully  justi- 
fied the  provisions  herein  contained.'  The  safety  ap- 
pliance acts  (Act  March  2,  1893,  c.  196,  27  Stat.  531, 
amended  bv  Act  April  1,  1896,  c.  87,  29  Stat.  85,  amend- 
ed by  Act  March  2,  1903,  c.  976,  32  Stat.  943  make  it 
unlawful  to  haul  any  car  in  interstate  transportation 
not  equipped  with  certain  appliances  deemed  necessary 
for  the  safety  of  employes.  When  these  statutes  first 
came  before  the  courts  for  construction,  it  was  contended 
that  they  could  only  apply  to  carriers  whose  lines  tra- 
verse more  than  one  state;  otherwise  they  would  be  in 
excess  of  the  powers  possessed  by  Congress.  Some  of 
the  trial  courts  sustained  this  contention,  but  upon  ap- 
peal it  has  been  practically  uniformly  held  that  they 
apply  to  all  railroads,  although  operating  entirely  within 
a  single  state,  independently  of  all  other  carriers,  if  any 
interstate  freight  is  carried  on  any  car  of  the  train. 
The  test  of  the  application  of  the  act  is  held  to  be  the 
transportation  of  any  articles  of  interstate  commerce, 
and,  as  thus  construed,  the  act  has  been  enforced  as  a 
constitutional  exercise  of  the  powers  vested  in  Congress. 
United  States  v.  Colorado  &  N.  W.  E.  Co.,  157  Fed.  321, 


§  41.")]      ScopK,    Validity    and    Effkct   of   Act.  701 

85  C.  0.  A.  27,  15  L.  R.  A.  (N.  S.)  167;  United  States  v. 
Colorado  &  N.  W.  R.  Co.,  157  Fed.  342,  85  C.  C.  A.  48; 
United  States  v.  Atchison,  etc.  Rv.  Co.  (C.  C.  A.)  16.3 
Fed.  517;  Chicago,  etc.,  Rv.  Co.\\  T'nitod  States  (C. 
C.  A.)  165  Fed.  423;  United  States  v.  Southern  Pacific 
Co.  (C.  C.  A.)  169  Fed.  407;  Union  Stock  Yards  Co.  v. 
United  States  (C.  C.  A.)  169  Fed.  404;  Belt  R.  Co.  of 
Chicago  V.  United  States  (C.  C.  A.)  168  Fed.  542;  Wa- 
bash R.  Co.  V.  United  States  (C.  C.  A.)  168  Fed.  1. 
The  constitniionality  of  the  bankruptcy  acts  of  Congress 
has  at  different  times  been  questioned  upon  similar 
grounds,  but  they  have  been  uniformly  sustained.  Sturcres 
V.  Crowninshield,  4  Wheat.  122,  4  L.  Ed.  529;  Nelson 
V.  Carland,  1  How.  265,  11  L.  Ed.  126;  Hanover  Nat. 
Bank  v.  Moyses,  186  U.  S.  181,  22  Sup.  Ct.  857,  46  L. 
Ed.  1113.  In  The  Daniel  Ball,  10  Wall.  557,  566,  19  L. 
Ed.  999,  it  was  claimed  that  the  provisions  of  Act  Cong. 
July  7,  1838,  c.  191,  5  Stat.  304,  amended  hv  Act  Aug. 
30,  1852,  c.  106,  9  Stat.  61,  making  it  unlawful  for  any 
steam  vessel  to  transport  merchandise  or  passengers 
upon  the  navigable  waters  of  the  United  States  with- 
out a  license,  did  not  apply  to  a  steamer  engaged  as  a 
common  carrier  between  places  in  the  same  state,  al- 
though a  portion  of  the  merchandise  transported  by  her 
is  destined  to  places  in  other  states;  she  not  running  in 
connection  with  or  in  continuation  of  any  line  of  steam- 
ers or  other  vessels,  or  any  railway  line  leading  to  or 
from  another  state.  But  the  court  overruled  this  con- 
tention and  held  that  the  act  applied  to  such  cases,  and 
that  it  was  not  an  infringement  on  the  rights  of  the 
states.  Mr.  Justice  Field,  who  delivered  the  opinion  of 
the  court,  said  on  that  subject:  'And  we  answer,  fur- 
ther, that  we  are  unable  to  draw  any  clear  and  distinct 
line  between  the  authority  of  Congress  to  regulate  an 
agency  employed  in  commerce  between  the  states,  when 
that  agency  extends  through  two  or  more  states,  and 
when  it  is  confined  in  its  action  entirely  within  the  limits 
of  a  single  state.  If  its  authority  does  not  extend  to  an 
agency  in  such  commerce,  when  that  agency  is  confined 
within  the  limits  of  a  state,  its  entire  authority  over 
interstate  commerce  may  be  defeated.'    While  that  case 


702  Injuries   to   Interstate   Employes.         [§  415 

was  one  arising  on  the  navigable  waters  of  the  United 
States,  it  is  now  well  settled  that  the  power  of  Congress 
under  the  commerce  clause  is  as  complete  upon  the  land. 
In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed. 
1092;  United  States  v.  Colorado  &  N.  W.  K.  Co.,  supra. 
It  may  be  proper  to  state  that  this  same  objection  was 
made  by  Messrs.  Littlefield  and  Bannon,  of  the  House 
Judiciary  Committee,  in  their  minority  report  on  this 
bill,  but  failed  to  receive  the  approval  of  either  House 
of   Congress.     The   only   reported    case   involving  this 
act,  which  the  court  has  been  able  to  find,  is  Fulgham 
V.  Midland  Valley  R.  Co.  (C.  C.)  167  Fed.  660,  decided 
by  Judge  Rogers  of  the  Western  district  of  this  state; 
but  the  constitutionality  of  the  act,  it  seems  was  not 
questioned,  and  not  determined  by  the  learned  judge. 
In  view  of  the  conclusion  reached,  it  is  unnecessary  to 
detennine  whether  that  question  can  be  raised  by  defend- 
ant in  this  case,  as  the  complaint  shows  on  its  face  that 
the  accident  was  caused  by  reason  of  the  negligence 
of  the  conductor  and  locomotive  engineer  of  the  train  on 
which  plaintiff's  intestate  was  the  fireman,  and  which 
train,  it  is  alleged,  was  at  the  time  engaged  in  interstate 
transportation.     Cases  on  that  point  which  may  be  con- 
sulted are  Supervisors  v.  Stanley,  105  U.  S.  305,  311,  26 
L.  Ed.  1044;  In  re  Garnett,  141  U.  S.  1,  12,  11  Sup.  Ct. 
840,  35  L.  Ed.  631;   Clark  v.   Kansas  City,   176   U.   S. 
114,  118,  20  Sup.  Ct.  284,  44  L.  Ed.  392;  Patterson  v. 
Bark  Eudora,  supra;  State  of  Missouri  v.  Dockery,  191 
U.  S.  170,  24  Sup.  Ct.  53,  48  L.  Ed.  133;  Cooley  on  Const. 
Lim.  (7th  Ed.)  p.  250.    In  the  opinion  of  the  court  the 
act  in  controversy  is  a  valid  exercise   of  the  powers 
granted  to  Congress  by  the  Constitution." 

§  416.  Scope  of  the  Federal  Employers'  Liability 
Act.  The  Act  of  Congress,  commonly  known  as  the 
P'ederal  Employers'  Liability  Act  governs  the  rights, 
duties  and  liabilities  of  common  carriers  by  railroad 
to  their  employes  for  personal  injuries,  when  the  injury 
or  death  occurs  while  the  carrier  is  engaged  and  the 


<^    416]        ScOPK^     VaLIUITV     and     h]FFK<T     OF     ACT, 


'03 


injured  servant  is  employed   in   interstate   commerce." 
The   law   also   applies   to   coninion    carriers   ))v   railroad 


13.    United  States.     Erie  K.  Co. 

V.  Welsh,  242   IJ.  S.  303,  Gl  L.  Ed. 

319,   37    Sup.   Ct.    IIG;    Shanks    v. 

Delaware,  L.  &  W.  R.  Co.,  239  U. 

S.  55(J,  60  U  Ed.  436,  36  Sup.  Ct. 

188;  Pennsylvania  R.  Co.  v.  Donat, 

239  U.  S.  50,  60  L.  Ed.  139,  36  Sup. 

Ct.  4;  Delaware,  L.  &  W.  R.  Co.  v. 

Yurkonis,  238  U.  S.  439,  59  L.  Ed. 

1397,  35   Sup.   Ct.   902;    Hudson   & 

M.   R.   Co.   V.    lorio.    152   C.    C.   A. 

641,  239  Fed.  855. 
Alabama.    Loveless  v.  Louisville 

&  N.  R.  Co.,  Ala.  ,  75  So. 

7;  Louisville  &  N.  R.  Co.  v.  Blauk- 

enship,  Ala.  ,  74  So.  960; 

Western  Ry.  of  Alabama  v.  Mays. 
Ala.  ,  72  So.  641;  Louis- 
ville &  N.  R.  Co.  V.  Carter,  195 
Ala.  382.  Ann.  Cas.  1917E  292,  70 

So.  655;  Ex  Parte  Atlantic  Coast 
Line  R.  Co.,  190  Ala.  132,  67  So. 
256. 

Connecticut.  Hubert   v.   New 

York,  N.  H.  &  H.  R.  Co.,  90  Conn. 
261,  96  Atl.  967. 

Georgia.  Alabama  Great  South- 
ern R.  Co.  v.  Tidwell,  145  Ga.  190, 
88  S.  E.  939. 

Illinois.  Devine  v.  Chicago.  R.  I. 
&  P.  R.  Co.,  266  111.  248.  Ann.  Cas. 
1916B  481,   107  N.   E.   595. 

Indiana.      Chicago   &    E.    R.    Co. 

V    Feightner.  Ind.  App.  , 

114  N.  E.  659. 

Kentucky.  Tjouisville  &  N.  R. 
-Jo.  v.  Netherton,  175  Ky.  159.  193 
S.  W.  1035;  Schaeffer  v.  Illinois 
Cent.  R.  Co.,  172  Ky.  337,  189  S. 
W.  237:  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  v.  Tucker,  168  Ky.  144.  181 
S.  W.  940. 

Minnesota.  McDonald  v.  Rail- 
way Transfer  Co.  of  Minneapolis, 
121  Minn.  273,   141  N.  W.  177. 


Mississippi.      Yazoo  &   M.    V.   R. 

Co.    v.    Houston,   Miss.   , 

75  So.  690;  New  Orleans,  M.  &  C. 
R.  Co.  v.  Jones,  111  Miss.  852,  72 
So.  681;  Elliott  v.  Illinois  Cent.  R. 
Co.,  Ill  Miss.  426,  71  So.  741. 

Missouri.  Young  v.  Lusk.  268 
Mo.  62.=3,  187  S.  W.  849;  Sells  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  266 
Mo.  155,  181  S.  W.  106;  Miller  v. 
Kansas  City  Western  R.  Co.,  180 
Mo.  App.  371,  168  S.  W.  336;  Hard- 
wick  V.  Wabash  R.  Co.,  181  Mc. 
App.  156,  168  S.  W.  328. 

Montana.  Alexander  v.  Great 
Northern  R.  Co.,  51  Mont.  505,  154 
Pac.  914. 

New  Jersey.  Willever  v.  Dela- 
ware, L.  &  W.  R.  Co.,  89  N.  J.  L. 
697,  99  Atl.  321;  Grybowski  v 
Erie  R.  Co.,  88  N.  .1.  L.  1.  95  Atl. 
764;  Hammill  v.  Pennsylvania  R. 
Co..  87  N.  .T.  L.  388,  94  Atl.  313. 

New  York.  Knowles  v.  Now 
Your,  N.  H.  &  H.  R.  Co.,  177  N.  Y. 
App.  Dlv.  262,  164  N.  Y.  Supp.  1: 
Shanks  v.  Delaware.  L.  &  W.  R. 
Co.,  214  N.  Y.  413,  Ann.  Cas.  15] 6E 
467,  108  N.  E.  644. 

Oklahoma.     Chicago,  R.   T.  &   P. 

R.  Co.  V.  Felder,  Okla.  . 

155   Pac.   529. 

Pennsylvania.  Waina  v.  Penn- 
sylvania Co.,  251  Pa.  213,  96  Atl. 
461. 

Tennessee.  Salmon  v.  Southern 
R.  Co.,  n^  Tenn.  223,  180  S.  W. 
16.'^. 

Vermont.  Carpenter  v.  Central 
Vermont  R.  Co.,  90  Vt.  35,  36  Atl. 
373. 

West  Virginia.  McKee  v.  Ohio 
Valley  Elec.  R.  Co..  78  W.  Va.  131, 
88  S.  E.  616. 


704 


Injuries   to   Interstate    Employes.         [§  416 


and  all  their  employes  in  the  territories  and  other  pos- 
sessions of  the  United  States.  Nearly  all  railroads  in 
the  United  States  are  constantly  engaged  in  interstate 
commerce. 

Under  the  controlling  rulings  and  decisions  of  the 
national  Supreme  Court,  commencing  with  the  Mondou 
case  in  1912,^^  it  is  conservatively  estimated  by  those 
in  i^ositions  to  know,  that  a  majority  of  the  railroad 
employes  in  the  United  States  are  engaged  in  interstate 
commerce  so  that,  if  injured  or  killed,  while  so  employed 
in  interstate  commerce,  the  remedy  for  the  injured  man, 
if  living,  and,  for  his  dependents,  if  dead,  is  to  be  de- 
termined and  measured  by  this  federal  act. 

Employes  injured  while  engaged  in  intrastate  com- 
merce are  still  governed  by  the  laws  of  the  states  where 
the   accidents  occur."     As  to  interstate   employes,   the 


Wisconsin.  Jacoby  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  165  Wis.  610, 
161  N.  W.  751,  164  N.  W.  88; 
Simiegil  v.  Great  Northern  R.  Co., 
165  Wis.  57,  160  N.  W.  1057;  Sul- 
livan V.  Chicago,  M.  &  St.  P.  R. 
Co.,  163  Wis.  583,  158  N.  W.  321; 
Zavitovsky  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  161  Wis.  461,  154  N  W. 
974;  Ruck  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  153  Wis.  158,  140  N.  W. 
1074. 

"Two  things  must  appear  before 
the  federal  statute  is  paramount: 
First,  that  the  railroad  was  en- 
gaged at  the  time  in  interstate 
transportation;  and,  second,  that 
the  employee  was  injured  while 
employed  in  interstate  commerce. 
Thus,  a  yardmaster,  who,  at  the 
time  of  his  injury  was  handling 
cars  for  intrastate  shipment, 
would  recover,  if  at  all,  under 
the  state  statute;  but  if  while 
handling  cars  for  interstate  trans- 
portation, the  federal  statute  will 
control."     Chicago,  R.  I    &  G.  Ry. 

Co.  V.  Cosio,  Tex.  Civ.  App. 

,  182  S.  W.  83. 


14.  In  re  Second  Employers' 
Liability  Cases,  223  U  S.  1,  56 
L.  Ed.  327,  32  Sup.  Ct.  169,  1  N 
C.  C.  R.  875,  38  L.  R.  A.  (N.  S.) 
44. 

15.  United  States.  Raymond  v. 
Chicago,  M.  &  St.  P  R.  Co.,  243 
U.  S.  43,  61  L.  Ed.  583,  37  Sup.  Ct. 
268;  New  York  Cent.  R.  Co.  v. 
White,  243  U.  S.  188,  61  L. 
Ed  667,  37  Sup.  Ct.  247,  13  N.  C. 
C.  A.  943,  Ann.  Cas.  1917D  629; 
Chicago,  B.  &  Q.  R.  Co.  v.  Harring- 
ton, 241  U.  S.  177,  60  L.  Ed.  941, 
36  Sup.  Ct.  517;  Osborne  v.  Gray, 
241  U.  S  16,  60  L.  Ed.  865,  36 
Sup.  Ct.  486;  Shanks  v.  Delaware, 
L.  &  W.  R.  Co.,  239  U.  S.  556,  60 
L.  Ed.  436,  36  Sup.  Ct.  188;  Dela- 
ware, L.  &  W.  R.  Co  V.  Yurkonis, 
238  U.  S.  439,  59  L.  Ed.  1397,  35 
Sup.  Ct.  902;  Wabash  R.  Co.  v. 
Hayes,  234  U.  S.  86,  58  L.  Ed. 
1226,  34  Sup.  Ct.  729,  6  N.  C.  C.  A. 
224;  Central  R.  Co.  of  New  .Jersey 
V.  Paslick,  152  C.  C.  A.  547,  239 
Fed.  713;  Erie  R.  Co.  v.  Van 
Buskirk,  143  C.  C.  A.  71,  228  Fed. 
489;  Boyle  v.  Pennsylvania  R.  Co., 


§  41f)j     Scope,   Validity    and    Rffect   of   Act. 


705 


remedy  provided  by  the  state,  is  exclusive,  and  as  to 
interstate    employes,    workin;^    for    interstate    railroads, 


142  C.  C.  A.  558,  228  Fed.  206; 
Boyle  V.  Pennsylvania  R.  Co.,  221 
Fed.  453;  Illinois  Cent.  R.  Co.  v. 
Rogers.  13G  C.  C.  A.  530,  221  Fed 
52. 

Alabama.     Mathews  v.  Alabama 

Great   Southern   R.  Co.,  Ala. 

,  7G  So.  17;  Loveless  v.  Louis- 
ville &  N.  R.  Co.,  Ala.  , 

75  So.  7;  Louisville  &  N.  R.  Co.  v. 
Carter,  195  Ala.  382,  Ann.  Cas. 
1917E  292,  70  So.  655;  Ex  Parte 
Atlantic  Coast  Line  R.  Co.,  190 
Ala.  132,  67  So.  25G. 

Connecticut.  Vickery  v.  New 
London  Northern  R.  Co.,  87  Conn. 
634,  89  Atl.  277. 

Georgia.  Southern  Ry.  Co.  v. 
v.  Rhoda, Fla. ,  74  So.  19. 

Georgia.  Southern  Ry.  Co.  v. 
Murphy,  9  Ga.  App.  190,  70  S.  E. 
972. 

Illinois.  Chicago,  R.  I.  &  P.  Ry. 
Co.  V.  Industrial  Board  of  Illi- 
nois, 273  111.  528.  L.  R.  A.  1916F 
540,   113   N.   E.  80. 

Iowa.  Narey  v.  Minneapolis  & 
St.  L.  R.  Co..  177  Iowa  606.  159 
N.  W.  230. 

Kansas.  Cole  v.  Atchison.  T.  & 
S.  F.  R.  Co..  92  Kan.  132.  139  Pac. 
1177. 

Kentucky.  Chesapeake  &  O.  ^. 
Co.  v.  Harmon's  Adm'r,  173  Ky. 
1,  189  S.  W.  1135;  Schaeffer  v. 
Illinois  Cent.  R.  Co..  172  Ky.  337, 
189  S.  W.  267;  Cincinnati.  N.  O.  & 
T.  P.  R.  Co.  v.  Clarke.  169  Ky.  662, 
185  S.  W.  94;  Cincinnati.  N.  0.  & 
T.  P.  R.  Co.  V.  Tucker,  168  Ky. 
144,  181  S.  W.  940:  .Tones  v.  Ches- 
apeake &  0.  R.  Co.,  149  Ky.  566, 
149  S.  W.  951. 

Massachusetts.  Corbett  v.  Bos- 
ton &  M.  R.  R.,  219  Mass.  .S51.  9 
N.  C.  C.  A.  691.  107  N    E.  60. 

1    Coutrcil    Carriers    45 


Michigan.  Fernette  v.  Pere 
Marquette  R.  Co.,  175  Mich.  653, 
141  N.  W.  1084,  144  N.  W.  834. 

Mississippi.     Yazoo  &   M.   V.   R. 

Co.    v.    Houston,   Miss.   , 

7.'"i  So.  690;  Illinois  Cent.  R.  Co.  v. 
Archer.  113  Miss.  158,  74  So.  135. 

New  Hampshire.    Cantin  v.  Glen 

.lunrt.    Transfer    Co.,    N.  H. 

■ ,  96  Atl.  303. 

.  New  York.  Hoag  v.  Ulster  & 
D.  R.  Co.,  177  N.  Y.  App.  Div.  433, 
164  N.  Y.  Supp.  529;  Knowles  v. 
New  York,  N.  H.  &  H.  R.  Co.,  177 
N.  Y.  App.  Div.  262,  164  N.  Y. 
Supp.  1;  Okrzesz  v.  Lehigh  Val- 
ley R.  Co.,  170  N.  Y.  App.  Div. 
15,  155  N.  Y.  Supp.  919;  Fair- 
child  v.  Pennsylvania  R.  Co.,  170 
N.  Y.  App.  Div.  135.  155  N.  Y. 
Supp,  751. 

Pennsylvania.  Hogarty  v.  Phil- 
adelphia &  R.  Ry.  Co..  255  Pa.  236, 
99  Atl.  741;  Hench  v.  Pennsyl- 
vania R.  Co.,  245  Pa.  1.  L.  R.  A. 
1915D  557,  Ann.  Cas.  191GD  230, 
91  Atl.  1056. 

South  Carolina.  Minis  v.  Atlan- 
tic Coast  Line  R.  Co..  100  S.  C. 
375,  85  S.  E.  372. 

Texas.      Missouri.    K.    &    T.    Ry. 

Co.  of  Texas  v.  Watson,  Tex. 

Civ.    App.   .    195    S.    W.    1177; 

Geer  v.  St.  Louis.  S.  F.  &  T.  Ry. 

Co., Tex.  .  194  S.  W.  939; 

Missouri.  K.  &  T.  Ry.  Co.  of  Texas 

V.  Pace.  Tex.  Civ.  App.  , 

184  S.  W.  1051;   San  Antonio  &  A. 

P.  Ry.  Co.  V.  Littleton.  Tex. 

Civ.    App.   ,    180    S.    W.    1194; 

Houston  &  T.  C.  R.  Co.  v.  Bright, 

Tex.   Civ.   App.  .   156    S. 

W.  304;  Missouri.  K.  &  T.  Ry.  Co. 

of  Texas  v.  Sadler.  Tex.  Civ. 

App.  ,  149  S.  W.  1188;  Mis- 
souri.  K.  &   T.   Ry.   Co.   of  Texas 


706 


Injuries   to   Interstate   Employes.         [^  416 


the  remedy  g-iven  by  the  federal  statute,  is  exclusive, 
so  that  a  practitioner  representing  any  employe,  or  an 
employe's  beneficiaries  in  case  of  death,  in  any  action 
for  personal  injuries  against  a  common  carrier  by  rail- 
road, must  familiarize  himself  with  the  Federal  Em- 
ployers' Liability  Act  to  determine  which  law,  if  any, 
furnishes  a  remedy  for  his  client. 

§  417.  Purpose  of  Congress  in  Enactment  of  Feder- 
al Act— Uniformity  and  Modification  of  Common  Law 
Rules.  Prior  to  the  enactment  of  the  Federal  Employ- 
ers' Liability  Act  of  1908  the  law  governing  the  liability 
of  railroad  "companies  engaged  in  interstate  commerce 
to  their  employes  for  personal  injuries  while  employed 
in  such  commerce,  depended  upon  the  statutes  and  de- 
cisions of  the   state   in  which   the  accident  occurred.'" 


V.    Turner,    — —    Tex.    Civ.    App. 

,  138  S.  W.  1126;  Missouri,  K. 

&  T.  R.  Co.  of  Texas  V.  Hawley,  58 
Tex.  Civ.  App.  143,  123  S.  W.  726. 
Utah.  Grow  v.  Oregon  Short 
Line  R.  Co.,  47  Utah  26,  150  Pac. 
970. 

Vermont.     Castonguay  v.  Grand 

Trunk  Ry.  Co.,  Vt. ,  100 

Atl.  908. 

Washington.  Killes  v.  Great 
Northern  R.  Co.,  93  Wash.  416, 
161  Pac.  69;  Bolch  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  90  Wash.  47,  155 
Pac.  422. 

West  Virginia.  Watts  v.  Ohio 
Valley  Elec.  R.  Co.,  78  W.  Va.  144, 
88  S.  E.  659. 

Wisconsin.  Great  Northern  R. 
Co.  V.  King,  165  Wis.  159,  161  N. 
W.  371;  Sullivan  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  163  Wis.  583,  158 
N.  W.  321;  Zavitovsky  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  161  Wis.  461, 
154  N.  W.  974. 

16.  New  York  Cent.  R.  Co.  v. 
White,  243  U.  S.  188,  61  L.  Ed.  667, 
37  Sup.  Ct.  247,  13  N.  C.  C.  A. 
943,  Ann.  Cas.  1917D  629;  Erie  R. 


Co.   v.   New   York,   233   U.    S.   671. 
58   L.   Ed.    1149,   34   Sup.   Ct.   756, 
52  L.  R.  A.  (N.  S.)   266,  Ann.  Cas. 
1915D   138;    Taylor  v.  Taylor,  232 
U.   S.  363,  58  L.  Ed.  638,  34   Sup 
Ct.  350,  6  N.  C.  C.  A.  436;  Chicago, 
I.  &  L.  R.  Co.  V.  Hackett,  228  U. 
S    559,  57  L.  Ed.  966,  33  Sup.  Ct. 
581;   Chicago,  R.  I.  &  P.  R.  Co.  v. 
Hardwick   Farmers    Elevator   Co., 
226   U.    S.   426,   57   L.   Ed.   284,   33 
Sup.  Ct.   174,  46  L.  R.  A.    (N.  S.) 
203;  Missouri  Pac.  R.  Co.  v.  Castle. 
224   U.    S.   541,    56  L.    Ed.   875,   32 
Sup.   Ct.    606;    LouisviUe  &  N.  R. 
Co.  v.  Melton,  218  U.  S.  36,  54  L. 
Ed.  921,  30   Sup.  Ct.  676,  47  L.  R. 
A.  (N.  S.)  84;  Tullis  v.  Lake  Erie 
&  W.  R.  Co.,   175  U.   S.  348,  44  L. 
Ed.  192,  20  Sup.  Ct.  136;  Chicago, 
M.  &  St.  P.  Ry.  Co.  v.  Solan,  169 
U.  S.  133,  42  L.  Ed.   688,  18   Sup. 
Ct.  289;  Minneapolis  &  St.  L.  Ry. 
Co.  V.  Herrick,   127  U.   S.  210,  32 
L.  Ed.  107,  8  Sup.  Ct.  1176;  Smith 
V.    Industrial    Accident    Commis- 
sion   of   California,    26    Cal.    App. 
560,  147  Pac.  600. 


§  41 7 1     Scoi'K,    \'aiji)Iiv    and    Kffect   of  Act. 


707 


In  some  states  the  fellow  servant  doctrine,  that  is, 
non-1  iahility  of  railroads  for  injuries  to  one  servant  by 
the  ne^lift'enee  of  another,  was  enforced,  but  in  others 
it  had  been  abolished  by  statute  or  judicial  rulings. 
In  some  jurisdictions  contributory  nef?lifj:once  was  a 
bar  to  the  suit,  while  in  others  the  employe's  negli- 
gence contributing  to  the  injury  merely  reduced  the 
damages.  Assum|)ti()ii  of  risk  as  a  defense  in  some  states 
was  applied  with  its  full  common  law  vigor;  but  in  other 
jurisdictions  it  had  been  partially  abolished  by  statute 
or  changed  by  judicial  legislation  to  a  mere  verbal  for- 
mula without  substance  as  a  defense  to  negligence.  Some 
judges  liad  held,  that  contracts  with  employes  not  to 
sue  in  consideration  of  some  form  of  insurance  or  indem- 
nity fund,  were  valid,  while  others  decided  to  the  con- 
trarv. 


"This  court  has  repeatedly  up- 
held the  power  of  the  State  to 
impose  upon  a  railway  company 
liability  to  an  employe  engaged 
In  train  service  for  an  injury 
inflicted  through  the  negligence  of 
another  employe  in  the  same 
service.  Missouri  Pacific  Rail- 
way Company  v.  Mackey,  127  U.  S. 
205;  Minneapolis  &  St.  L.  Ry.  Co. 
v.  Herrick,  127  U.  S.'  210;  Tullis 
v.  Lake  Erie  &  W.  Railway  Com- 
pany, 175  U.  S.  348:  Chicago,  K. 
&  W.  R.  Co.  v.  Pontius,  157  U.  S. 
209;  and  Mondou  v.  New  York,  N. 
H.  &  H.  R.  Co.,  22.1  U.  S.  1: 
Obviously,  the  same  reasons  which 
justified  a  departure  from  the 
common-law  rule  in  respect  to 
the  negligence  of  a  fellow-servant 
also  justify  a  similar  departure 
in  regard  to  the  effect  of  contribi- 
tory  negligence,  and  the  cases 
above  cited  in  principle  are  there- 
fore authoritative  as  to  the  law- 
fulness of  the  modification  made 
by  the  second  section  of  the  stat- 
ute under  consideration  of  the  rule 


of  contributory  negligence  as  ap- 
plied to  railway  employes.  The 
decision  In  the  Mondou  Case  sus- 
taining the  validity  of  the  Feder- 
al Employers'  Liability  Act  prac- 
tically forecloses  all  questions  as 
to  the  authority  possessed  by  the 
State  of  Nebraska  by  virtue  of 
its  police  power  to  enact  the  stat- 
ute in  question  and  to  confine  the 
benefits  of  such  legislation  to  the 
employes  of  railroad  companies; 
and  as.  at  the  time  the  plaintiff 
received  the  injuries  complained 
of,  there  was  no  subsisting  legis- 
lation by  Congress  affecting  the 
liability  of  railway  companies  to 
their  employes,  under  the  con- 
ditions shown  in  this  case,  the 
State  was  not  debarred  from  thus 
legislating  for  the  protection  of 
railway  employes  engaged  in  in- 
terstate commerce.  See  the 
Mondou  Case,  supra,  and  Chicago, 
M.  &  St.  P.  R.  R.  Co.  V.  Solan, 
169  U.  S.  133."  Missouri  Pac.  Ry. 
Co.   V.   Castle,   swjjro. 


08 


Injuries   to   Interstate    Employes.         [§  417 


From  this  babol  of  judicial  voicos,  with  its  conse- 
quent glaring  ineciuitios  and  inequalities,  came  the 
national  act,  declaring  one  rule  of  liability  throughout 
the  nation  and  with  it,  as  a  necessary  concomitant,  the 
decisions  of  the  national  courts,  construing  the  act  in 
all  its  parts,  became  binding  upon  all  state  courts. 
The  fellow  servant  doctrine  was  abolished;  something 
akin  to  comparative  negligence  was  substituted  for  con- 
tributory negligence;  assumption  of  risk  in  certain  cases 
was  abolished;  contracts  for  a  consideration  of  indemnity 
waiving  the  right  to  sue  were  declared  void  and  the 
principle  of  compensation  as  a  substitute  for  penalties 
in  the  way  of  damages  which  regulated  I'ecoveries  in 
certain  states,  was  adopted. 

Congress  enacted  this  statute  so  that  a  uniform 
law  could  apply  to  those  engaged  in  interstate  commerce 
in  all  the  states,  and  so  that  certain  common  law  rules 
determining  liability  might  be  abolished  in  order  to 
protect  the  lives  and  persons  of  employes,  by  securing 
a  more  careful  selection  of  employes,  a  closer  super- 
vision of  them  and  a  more  rigid  enforcement  of  their 
duties."     "The  purpose  of  this  bill  is  to   change  the 


17.  Hulac  V.  Chicago  &  N.  W. 
Ry.  Co.,  194  Fed.  747;  Watson  v. 
St.  Louis,  I.  M.  &  S.  Ry.  Co.,  169 
Fed.  942;  Kelley  v.  Great  North- 
ern Ry.  Co.,  152  Fed.  211;  Snead 
V.  Central  of  Georgia  Ry.  Co.,  151 
Fed.  608;  Long  v.  Biddle,  124  Ark. 
127,  186  S.  W.  601;  Burnett  v.  At- 
lantic Coast  Line  R.  Co.,  16.3  N. 
C.   186,  79  S.  E.  414. 

In  Watson  v.  St.  Louis,  I.  M.  & 
S.  Ry.  Co.,  supra,  the  court  said: 
"The  object  of  Congress  in  the  en- 
actment of  the  law  was  to  protect 
the  men  employed  in  this  hazarfl- 
ous  occupation,  in  which  thous- 
ands are  annually  killed  or  maim- 
ed without  any  fault  of  the  master 
himself,  but  by  the  negligence  of 
other  employes,  over  whom  the 
servant    has    no    control,    and    in 


whose  selection  he  had  no  voice. 
The  legislation  is  neither  new  nor 
revolutionary.  It  had  been  recom- 
mended by  President  Roosevelt  in 
his  annual  message  in  1905,  and 
again  in  a  special  message  on 
January  31,  1907.  A  similar  act 
was  passed  by  the  English  Parlia- 
ment as  early  as  1880,  and  among 
the  states  of  the  Union  a  large 
number  have  either  abolished  the 
fellow-servant  rule  entirely  or 
modified  it  materially  in  respect 
to  employes  engaged  in  hazardous 
occupations;  many  of  them  limit- 
ing the  change  to  railroads. 
Among  these  are  Alabama,  Arkan- 
sas, California,  Connecticut,  Colo- 
rado, Florida,  Georgia,  Indiana, 
Iowa,  Kansas,  Massachusetts,  Min- 
nesota, Missouri,  Mississippi,  Mon- 


§■    417]       Scol'K,     \'.\MI)IIV     AM)     IOkFKCT     OK     AcT.  709 

common-law  liability  of  em])loyers  of  labor  in  tliis  line 
of  commerce,  for  personal  injuries  received  by  employes 
in  the  service.  It  abolishes  the  strict  common-law  rule 
of  liability  which  bars  a  recovery  for  the  personal  injury 
or  death  of  an  employe,  occasioned  by  the  negli.i^ence 
of  a  fellow-servant.  It  also  relaxes  the  common-law  rule 
which  makes  contributory  neij^ligence  a  defense  to  claims 
for  such  injuries.  It  permits  a  recovery  by  an  em])loye 
for  an  injury  caused  by  the  negligence  of  a  co-employe; 
nor  is  such  a  recovery  barred  even  though  the  injured 
one  contributed  by  his  own  negligence  to  the  injury. 
The  amount  of  the  recovery,  however,  is  diminished  in 
the  same  degree  that  the  negligence  of  the  injured  one 
contributed  to  the  injury.  It  makes  each  party  res- 
ponsible for  his  own  negligence,  and  re(|uires  each  to 
bear  the  burden  thereof.  The  bill  also  provides  that, 
to  the  extent  that  any  contract,  rule,  or  regulation 
seeks  to  exempt  the  emi)loyer  from  liability  created  by 
this  act,  to  that  extent  such  contract,  rule  or  regulation 
shall  be  void.  Many  of  the  States  have  already  changed 
the  common-law  rule  in  these  particulars,  and  by  this 
bill  it  is  hoped  to  fix  a  uniform  rule  of  liability  through- 
out the  Union  with  reference  to  the  liability  of  common 

tana,  Nebraska,  Nevada,  North  States,  evidently  considered  it  an 
Carolina,  North  Dakota,  New  injustice  that  persons  injured, 
York,  Ohio,  Oklahoma,  Oregon,  or  in  case  of  death,  the  surviv- 
Pennsylvania,  South  Carolina,  ing  members  of  the  family,  should 
South  Dakota,  Texas.  Wisconsin,  become  burdens  on  the  public 
Virginia,  and  Wyoming,  all  of  and  objects  of  charity,  and  there- 
which  acted  on  that  subject  long  fore  considered  it  better  public 
before  Congress.  Similar  statutes  policy  that  the  employer  should 
have  also  been  for  a  long  time  in  be  required  to  make  some  pro- 
force  in  most  of  the  continental  vision  for  them,  charging  the 
states  of  Europe.  This  evidences  moneys  thus  expended  to  expenses 
that  such  legislation  is  in  com-  of  management,  or  cost  of  pro- 
plianco  with  the  demands  of  an  duction,  and.  collect  it  Indirect- 
enlightened  public  opinion.  To  ly  from  the  public.  The  enact- 
effect  this  purpose  it  is  wholly  im-  ment  of  such  a  statute  not  only 
material  what  the  employment  of  results  in  protecting  the  employes 
the  fellow  servant  is.  Public  opin-  of  carriers  by  rail,  but  at  the 
ion,  as  expressed  through  the  leg-  same  time  guards  the  public  wel- 
islative  departments  of  the  na-  fare  by  securing  the  safety  of 
tion.     as     well    as    many    of    the  travelers." 


710  Injuries   to   Interstate   Employes.         [§  417 

carriers  to  their  employes.  Sections  1  and  2  of  this 
bill  provide  that  common  carriers  by  railroad,  engaged 
in  interstate  and  foreign  commerce,  in  commerce  in  the 
District  of  Columbia,  the  Territories,  the  Panama  Canal 
Zone,  and  other  possessions  of  the  United  States,  shall 
be  liable  to  its  employes  for  personal  injuries  resulting 
from  its  negligence  or  by  reason  of  any  defect  or  in- 
sufficiency due  to  its  negligence  in  its  roads,  equipment, 
or  methods.  It  is  not  a  new  departure,  but  rather 
goes  back  to  the  old  law  which  made  the  master  liable 
for  injury  occasioned  by  the  negligence  of  his  servant, 
either  to  a  co-servant  or  to  a  third  person.  The  doctrine 
of  fellowservant  was  first  enunciated  in  England  in 
1837,  and  since  that  time  it  has  been  generally  followed 
in  that  country  and  this,  except  where  abrogated  or 
modified  by  statute.  Whatever  reason  may  have  existed 
for  the  doctrine  at  the  time  it  was  first  announced,  it 
can  not  be  said  to  exist  now,  under  modern  methods 
of  commerce  by  railroad.  It  is  possible  that  a  century 
ago,  under  industrial  methods  and  systems  as  they  then 
existed,  co-employes  could  have  some  influence  over 
each  other  tending  to  their  personal  safety.  It  is  pos- 
sible that  they  could  know  something  of  the  habits  and 
characteristics  of  each  other.  Under  present  industrial 
methods  and  systems  this  can  not  be  true.  Then  they 
worked  with  simple  tools  and  were  closely  associated 
with  each  other  in  their  work.  Now  they  work  with 
powerful  and  complex  machinery,  with  widely  diversi- 
fied duties,  and  are  distributed  over  larger  areas  and 
often  widely  separated  from  each  other.  Under  present 
methods,  personal  injuries  have  become  a  prodigious 
burden  to  the  employes  engaged  in  our  industrial  and 
commercial  systems.  The  master  should  be  made  whol- 
ly responsible  for  injury  to  the  servant  by  reason  of 
the  negligence  of  a  co-servant.  He  exercises  the  au- 
thority of  choosing  the  employes  and  if'  made  responsi- 
ble for  their  acts  while  in  line  of  duty  he  will  be  in- 
duced to  exercise  the  highest  degree  of  care  in  select- 
ing competent  and  careful  persons  and  will  feel  bound 
at  all  times  to  exercise  over  employes  an  authority  and 
influence  which  will  compel  the  highest  degree  of  care 


§i4]7|     Scoi'K,    V'audiiv    and    Ekkkct   ok   Act.  711 

oil  their  part  for  the  safety  of  each   other  in   tlie   ]U'\- 
formanee  of  tlieir  duties.    These  seetions  make  tlie  em- 
ployer  liable    for   injury    caused   by    defects   or   insuf- 
ficiencies  in   the   roadbed,   tracks,   engines,   machinery, 
and  other  ai)pliances  used  in  llic  oi)eration  of  railroads. 
Over   these   things  the   emphjye    has   absolutely    no    au- 
thority.     The   employer    has   complete    authority    over 
them,  both  in  their  construction  and  in  their  mainten- 
ance.    It  is  a  very  hard  rule,  indeed,  to  compel   men, 
who  by  the  exigencies  and  necessities  of  life  are  bound 
to  labor,  to  assume  the  risks  and  hazards  of  the  em- 
ployment, when  these  risks  and  hazards  could  be  great- 
ly lessened  by  the  exercise  of  proper  care  on  the  part 
of  the  employer  in  providing  safe  and  ])roper  machinery 
and  ef|uiiiment  with  which  the  employe  does  his  work. 
We  believe  that  a  strict  rule  of  liability  of  the  employer 
to  the  employe  for  injuries  received  from  defective  ma- 
chinery will  greatly  lessen  i)ersonal  injuries  on  that  ac- 
count.    The  common-law  rules   of  fellow-servants  and 
assumption  of  risk  still  prevail  in  many  of  the  States, 
and  without  any  apparent  good  reason.    In  recent  years 
many   of  the   countries   of   Europe   have    ado]ited   new 
rules  of  liability,  which   greatly  releive  the  liarshness 
of  the  common  law  as  it  still  exists  in  some  of  the  States. 
In   1888   England   passed   an   act   which    abolished   the 
doctrine  of  fellow-servant  with  reference  to  the   oper- 
ation of  railroad  trains,  and   in   1897  it   extended   this 
law  to  apply  to  many  of  the   hazardous  employments 
of  the  country.    For  many  years  the  doctrine  in  Germany 
has  been  yielding   step   by  step   to   better  rules,   until 
for  the  last  rpiarter  of  a  century  it  does  not  aj^i^ly  to 
any   of   the   hazardous   occupations.      In   1869    Austria 
passed  a  law  making  railroad  companies  liable  for  all 
injuries  to  their  employes  except  where  the  injury  was 
due  to  the  victim's  own  negligence.     The  Code  kapo- 
leon  made  the  employer  answerable  for  all  injuries  re- 
ceived by  his  workmen,  and  this  code  is  still  in  force 
in   Belgium    and    Holland,     Other    European   countries 
have  from  time  to  time  made  laws  fixing  the  liability  of 
the  master  for  damages  caused  by  the  negligent  act  of 
his  servant.    Many  of  the  States  have  i)assed1aws  modi- 


712  Injuries   to    Intkkstate    Employes.         [§  417 

fying-  the  doctrine  as  changing  conditions  required  it 
and  justice  to  the  employe  demanded  it.     Alabama   in 
1885  eliminated  the  doctrine  so  far  as  it  relates  to  rail- 
roads,   and    in    other    particulars.      Arkansas    in    1898 
qualified  the  doctrine  as  to  railroad  employment.     Geor- 
gia in  1856  entirely  abolished  the  doctrine  as  to  rail- 
roads.   Iowa  abolished  it  as  to  train  operatives  in  1862. 
Kansas  did  the  same  thing  in  1874.     The  latest  statute 
in  Wisconsin  on  the  subject  abolished  the  fellow-servant 
doctrine  as  to  employes  actually  engaged  in  operating- 
trains.    Minnesota  did  the  same  thing  in  1887.     Florida, 
Ohio,  Mississippi,  and  Texas  have  changed  the  doctrine 
to  the  advantage  of  the  employe.    North  Carolina,  North 
Dakota,  and  Massachusetts  have  practically  eliminated 
the  doctrine  as  regards  the  operation  of  railroad  trains. 
Colorado  in  1901  abolished  the  doctrine  in  toto.     Other 
States  have  either  abolished  it  or  modified  it  as  regards 
the  operation  of  railroads.     As  compared  with  the  law 
now  in  force  in  other  countries  and   in  many   of  the 
States,  the  changes  made  in  the  law  of  fellow-servant  by 
this  bill  are  not  radical.     The  doctrine  as  regards  the 
hazardous   occupations  is  being  relegated   everywhere. 
A  Federal  Statute  of  this  character  will   supplant  the 
numerous  State  Statutes  on  the  subject  so  far  as  they 
relate  to  interstate  commerce.     It  will  create  uniformity 
throughout  the  Union,  and  the  legal  status  of  such  em- 
ployer's liability  for  personal  injuries,  instead  of  being- 
subject  to  numerous  rules,  will  be  fixed  by  one  rule  in 
all  the  States.     It  is  thought  that  the  adoption  of  the 
rule,  as  provided  in  this  section,  will  be  conducive  to 
greater  care  in  the  operation   of  railroads.     As  it   is 
now,  where  the  doctrine  of  fellow-servant  is  in  force, 
no  one  is  responsible  for  the  injury  or  death  of  an  em- 
ploye if  caused  by  the   carelessness   of  a   co-employe. 
The  co-servant  who  is  guilty  of  negligence  resulting  in 
the  injury  may  be  liable,  but  as  a  rule  he  is  not  re- 
sponsible,  and    hence    the   injury    is   not   compensated. 
The  employe  is  not  held  by  the  employer  to  such  strict 
rules  of  caution  for  the  safety  of  his  co-employe,  be- 
cause the  employer  is  not  bound  to  pay  the  damages  in 
case  of  injury.     If  he  were  held  liable  for  damages  for 


<§>■  418]      Sf'OPK,    Vaijditv    anh    Kkfkct    of   Act. 


i;] 


every  injury  occasioned  l)y  the  negligence  of  his  servant, 
he  would  impose  the  same  strict  rules  for  tlie  safety  of 
his  employes  as  he  does  for  the  safety  of  passengers 
and  strangers.  lie  will  make  the  emjiloyment  of  his 
servant  and  his  retention  in  the  service  dc})endent  upon 
the  exercise  of  higher  care,  and  this  will  he  the  stronger 
inducement  to  the  employe  to  act  with  a  higher  rcgjiid 
for  the  safety  of  his  fellow-workmen. '"" 

§  418.  Defects  in  Act  of  1908  and  Amendments 
of  1910.  In  the  enforcements  of  the  i)rovi.sions  of  the 
net  of  1908,  the  courts  held  that  the  right  of  action 
given  to  an  injured  employe  did  not  survive  to  his  per- 
sonal representative  in  the  event  of  his  death;'''  that  an 


18.  Report  of  Judiciary  Com- 
mittee of  House  of  Representa- 
tives on  Federal  Employers'  Lia- 
bility Act  of  1908. 

19.  Walsh  V.  New  York,  N.  H. 
&  H.  R.  Co.,  173  Fed.  494;  Ful- 
gham  V.  Midland  Valley  R.  Co., 
167  Fed.  660.  "But  it  will  be 
observed  on  the  other  hand  that 
the  act  makes  no  provisions  for 
the  survival  of  that  action,  so 
given,  for  an  injury  sustained,  in 
the  event  of  the  death  of  the  in- 
jured employe.  ♦  *  *  ^  ga^. 
not  be  that  legislation  so  much 
discussed  in  and  out  of  Congress, 
and  which  had  to  be  so  carefully 
matured  and  drawn  in  order  to 
meet  the  views  of  the  courts,  legis- 
lation, too,  which  inherently 
shows  the  skill  of  the  lawyer  evi- 
dently familiar  with  the  settled 
principles  of  the  common  law 
which  it  modifies  in  the  interest 
of  justice  and  humanity,  is  not 
expressive  of  the  will  of  Con- 
gress, or  omits  anything  which 
Congress  intended  to  do  by  it. 
It  would  have  been  so  easy  for 
Congress  to  have  said,  as  the 
legislation  of  so  many  states  had 


previously  provided,  that  in  the 
event  the  employe  injured  should 
die  from  the  injury  his  cause  of 
action  should  survive  to  his  per- 
sonal representative,  that  it  can 
scarcely  be  conceived  that  the  pro- 
vision would  have  been  omitted 
had  Congress  so  intended.  But 
whatever  Congress  may  have  in- 
tended, it  has  not  done  so,  and 
the  courts  must  confine  them- 
selves to  the  administration  of  the 
law,  and  neither  add  to  nor  take 
from  a  statute  where  its  language 
is  clear  and  unambiguous.  In  the 
opinion  of  the  court  the  right  of 
action  given  to  the  injured  em- 
ploye by  the  act  of  April  22.  1908. 
does  not  survive  to  his  personal 
representative  in  the  event  of  his 
death,  but,  as  at  common  law, 
perishes  with  the  injured  person. 
I  might  add  that  this  conclusion 
is  in  harmony  with  the  known 
purposes  of  the  act,  which  was 
intended  to  make  some  provision 
for  the  unfortunate  family  of  the 
deceased  employe,  and  not  to 
make  provision  for  the  creditors 
of  his  estate."  Fulgham  v.  Mid- 
land  Valloy   R.   Co..   supra. 


71-1:  Injuries   to   Interstate    Employes.         [^  418 

action  instituted  in  tlie  state  court  under  the  federal 
act  could  be  removed  to  the  proper  circuit  court  when 
the  required  amount  was  involved  and  a  diversity  of 
citizenship  existed""  and  that  when  the  jurisdiction  of 
a  federal  circuit  court  was  based  on  the  fact  that  the 
suit  arose  under  a  law  of  the  United  States,  the  pLnin- 
tiff  was  compelled  to  sue  in  the  district  of  which  the 
defendant  was  an  inhabitant,  which,  in  case  of  a  cor- 
poration, was  the  jurisdiction  in  which  the  charter  of 
the  defendant  corporation  was  issued.^'  In  addition 
to  these  decisions,  the  supreme  court  of  Connecticut 
even  held  that  a  cause  of  action  under  the  Federal  Em- 
ployers' Liability  Act  could  not  be  prosecuted  in  a  state 
court." 

The  amendatory  act  of  1910  resulted  from  the  deci- 
sions of  the  courts  in  these  cases.     The  amendment  to 
section  6  provided  that  any  action  under  the  act  may  be 
brouft-ht  in  a  circuit  court  of  the  United  States,  in  the 
district  of  the  residence  of  the  defendant,  or  in  which 
the  cause  of  action   arose   or  in   which   the   defendant 
shall    be    doing-  business    at    the    time    of   commencing 
such  action,  and  further  jDrescribed  that  the  jurisdiction 
of  the  courts  of  the  United  States  under  the  act  shall 
be   concurrent  with   that   of   the   courts   of  the    several 
states,  and  no  case  arising  under  the  act  and  brought 
in  any  state  court   of  com]>etent  jurisdiction,   shall   be 
removed  to  any  court  of  the  United  States.    The  second 
amendment  provided  that  any  right  of  action  given  by 
the   act  to   a  person   suffering  injury  shall    survive   to 
his  or  her  personal  representative,  for  the  benefit  of  the 
surviving  widow  or  husband  and  children  of  such  em- 
ploye,  and,   if  none,   then   of    such   employe's   parents, 
and,  if  none,  then  of  the  next  of  kin  dependent  upon 
such  em.ploye,  but  in  such  cases  there  shall  be  only  one 
recovery  for  the  same  injury. 

20     Cound  V.  Atchison,  T.  &  S.  501,  54  L.  Ed.  300,  30  Sup.  Ct.  184. 

F   Ry   Co  ,  173  Fed.  527.  22.    Hoxie  v.  New  York,  N.  H. 

21.    Macon    Grocery    Co.    v.    At-  &  H.  R.  Co.,  82  Conn.  352,  17  Ann. 

lantic  Coast  Line  R.  Co.,  215  U.  S.  Cas.  324,  73  Atl.  754. 


*^  419]     S(,'(ji'K,   Vai.iditv    and    1']ffect   of   Act.  715 

§  419.  Congressional  Purpose  in  the  Enactment  of 
the  Amendments  of  1910.  The  puiixji^c  of  (."oiigross 
in  passing  the  Act  of  1910  was  thus  stated  by  the  Judic- 
iary Committee  of  the  Senate  in  its  report  recommending 
the  enactment  of  the  amendments:  "Tlie  proposed 
amendments  to  the  employers'  liability  bill  may  be  con- 
sidered under  three  heads:  P'irst,  as  to  the  venue  of 
such  an  action;  second,  as  to  the  concurrent  jurisdic- 
tion of  the  courts  of  the  several  States;  and,  third,  as 
to  the  survival  of  the  right  of  action.  (1)  As  to  venue. 
The  amendment  proposed  as  to  inserting  in  section  6 
after  the  words  therein,  'that  no  such  action  shall  be 
maintained  under  this  act  unless  commenced  within 
two  years  from  the  day  cause  of  action  accrued,'  the 
following:  'Under  this  act  an  action  may  be  brought 
in  a  circuit  court  of  the  United  States,  in  the  district 
of  the  residence  of  either  plaintiff  or  the  defendant, 
or  in  which  the  cause  of  action  arose,  or  in  which  the 
defendant  shall  be  found  at  the  time  of  the  commence- 
ment of  such  action.'  In  his  special  message  of  January 
7,  1910,  President  Taft,  after  referring  to  a  proposed 
amendment  to  give  the  Interstate  Commerce  Commis- 
sion power  to  determine  the  uniform  construction  of 
all  steps,  ladders,  hand  brakes,  etc.,  said:  'The  ques- 
tion has  arisen  in  the  operation  of  the  interstate  com- 
merce employers'  liability  act  as  to  whether  suit  can 
be  brought  against  the  employer  company  in  any  place 
other  than  of  its  home  office.  The  right  to  bring  the 
suit  under  this  act  should  be  as  easy  of  enforcement 
as  the  right  of  a  private  person  not  in  the  company's 
employ  to  sue  on  an  ordinary  claim,  and  process  in 
such  suit  should  be  sufficiently  served  if  upon  the  station 
agent  of  the  company  upon  whom  service  is  authorized 
to  be  made  to  bind  the  company  in  ordinary  actions 
arising  under  state  laws.  Bills  for  both  the  foregoing 
purposes  have  been  considered  by  the  House  of  Eepre- 
sentatives,  and  have  been  passed,  and  are  now  before 
the  Interstate  Commerce  Connuittee  of  the  Senate. 
I  earnestly  urge  that  they  be  enacted  into  law.'  This 
amendment  is  necessary  in  order  to  avoid  great  incon- 
venience to  suitors  and  to  make  it  unnecessarv  for  an  in- 


7Ui  Injuries   to   Interstate    Employes.         [§  419 

jured  plaintiff  to  proceed  only  in  the  jurisdiction  in 
which  the  defendant  corporation  is  an  'inhabitant.'  This 
is  held  by  the  courts  to  be  the  jurisdiction  in  which  the 
charter  of  the  defendant  corporation  was  issued.  This 
may  be  at  a  place  in  a  distant  State  from  the  home  of  the 
plaintiff,  and  may  be  a  thousand  miles  or  more  from 
the  place  where  the  injury  was  occasioned.  The  ex- 
treme dithculty,  if  not  impossibility,  of  a  poor  man  who 
is  injured  while  in  railroad  employ,  securing  the  at- 
tendance of  the  necessary  witnesses  at  such  a  distant 
point  makes  the  remedy  given  by  the  law  of  little 
avail  under  such  circumstances.  *  *  *  It  is  pro- 
posed to  further  amend  the  act  by  making  the  jurisdic- 
tion of  the  courts  of  the  United  States  'concurrent  with 
the  courts -of  the  several  States.'  This  is  proposed  in 
order  that  there  shall  be  no  excuse  for  courts  of  the 
States  to  follow  in  the  error  of  the  Supreme  Court  of 
Errors  of  Connecticut  in  the  case  of  Hoxie  v.  N.  Y.,  N. 
H.  &  H.  R.  R.  Co.  (73  Atlantic  Rep.  754),  in  which  case 
the  court  declined  jurisdiction  upon  the  ground,  inter 
alia,  that  Congress  did  not  intend  that  jurisdiction  of 
cases  arising  under  the  act  should  be  assumed  by  state 
courts.  It  is  clear  under  the  decisions  of  the  Supreme 
Court  of  the  United  States  that  this  conclusion  of  the 
Connecticut  court  is  erroneous.  And  the  reasons  re- 
cited by  the  Connecticut  court  lead  to  an  opposite  con- 
clusion from  that  which  the  opinion  declares  upon  the 
subject.  But  no  harm  can  come,  and  much  injustice  and 
wrong  to  suitors  may  be  prevented  by  an  express  declara- 
tion that  there  is  no  intent  on  the  part  of  Congress  to 
confine  remedial  actions  brought  on  the  part  of  Congress 
to  confine  remedial  actions  brought  under  the  Employ- 
ers' Liability  Act  to  the  courts  of  the  United  States. 
In  declaring  that  the  jurisdiction  of  the  United  States 
courts  shall  be  'concurrent  with  the  courts  of  the  sev- 
eral States,'  Congress  is  clearly  within  its  rights  and 
powers.  *  *  *  Many  of  the  States  provide  by  stat- 
ute for  the  survival  of  any  action  which  the  deceased 
may  have  had  for  the  injury  to  his  estate,  and  for  any 
expenditures  during  his  lifetime  resulting  from  the  in- 
jury.    In  the  phraseology  of  the  existing  Employers' 


^  420 1     SropK,    Validity    and    Effect   of   Act.  717 

Liability  Act— that  is,  the  Act  of  April  22,  1908— the 
exi)res.sion  used  is,  as  to  the  question  now  under  con- 
sideration: 'Shall  be  liable  in  damages  *  *  *  in  case 
of  death  of  such  employe,  to  his  or  her  personal  repre- 
sentative for  the  benefit  of  tlie  surviving  widow  or  hus- 
baiid  and  children  of  such  employe;  and  if  none,  then  of 
such  emlpoye's  parents;  and  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employe,  for  such  injury  or 
death  resulting  in  whole  or  in  part  from  the  negligence 
of  any  of  its  officers,  agents,  employes,'  *  *  *  .In 
the  case  of  Fulgham  v.  Midland  Valley  R,  R.  Company, 
hereinbefore  cited,  the  court  said:  'In  the  opinion  of  the 
court,  right  of  action  given  to  the  injured  employe  by 
the  act  of  Ai)ril  22,  1908,  does  not  survive  to  his  per- 
sonal representative  in  the  event  of  his  death,  but,  at 
common  law,  perishes  with  the  injured  person.'  *  *  * 
The  language  of  the  statute  should  be  made  clear  so  that 
the  uncertainty  and  obscurity  suggested  by  Judge  Lowell 
would  be  removed.  So  important  a  statute  should  be 
made  so  certain  in  its  tenns  that  the  intent  of  Congress 
may  be  made  manifest  and  clear.  It  certainly  should 
be  as  broad,  as  comprehensive,  and  as  inclusive  in  its 
terms  as  any  of  the  similar  remedial  statutes  existing 
in  any  of  the  States,  which  are  suspended  in  their  oper- 
ation by  force  of  the  Federal  legislation  upon  the  sub- 
ject." 

§  420.  Extent  of  Power  Exercised  by  Congress  in 
Passing  the  Liability  Act.  A  troublesome  question  to 
the  practitioner  will  frecpiently  arise  as  to  whether  the 
facts  of  his  case  create  a  cause  of  action  under  the  fed- 
eral act,  or  under  the  laws  of  the  state,  since  the  remedy 
in  each  realm  is  exclusive.  Many  conflicting  decisions 
which  will  be  reviewed  later,  have  been  handed  down 
defining  or  holding  when  a  railroad  company  is  engaged 
in  interstate  commerce"  or  when  a  servant  is  employed 
in  such  commerce,-*  for  under  the  federal  act  both  must 

23.     Chapter  22,  infra.  24.    Chapters  23.  24,  25  and  26, 

infra. 


Injuries   to   Intebstate   Employes.         ['^  420 


be  so  engaged  to  reuder  tlie  statute  applicable''  and  the 
remedy  therein  provided  is  then  exclusive. 


25.  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  58  L.  Ed. 
591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 
109;  Ann.  Gas.  1914C  159;  Erie  R. 
Co.  V.  Krysienski,  151  C.  C.  A. 
218,  238  Fed.  142;  Grand  Trunk 
R.  Co.  of  Canada  v.  Knapp,  147  C. 
C.  A.  624,  233  Fed.  950  13  N.  C. 
C.  A.  1100;  Lucchetti  v.  Phila- 
delphia &  R.  Ry.  Co.,  233  Fed. 
137;  Lombardo  v.  Boston  &  M.  R. 
Co.,  223  Fed.  427;  Boyle  v.  Penn- 
sylvania R.  Co.,  221  Fed.  453; 
Illinois  Cent.  R.  Co.  v.  Rogers, 
136  C.  C.  A.  530,  221  Fed.  52;  Bay 

V  Merrill  &  Ring  Logging  Co., 
136  C.  C.  A.  277,  220  Fed.  295; 
Central  R.  Co.  of  New  Jersey  v. 
Colasurdo,  113  C.  C  A.  379,  192 
Fed.  901. 

Alabama.  Loveless  v.  Louis- 
ville &  N.  R.  Co.,  Ala.  , 

75    So.   7;    Louisville  &  N.  R.   Co. 

V  Blankenship,  Ala.  ,  74 

So.     960;      Southern     Ry.     Co.    y. 

Fisher,     Ala.    ,    74    So. 

580. 

Arkansas.  Long  v.  Biddle,  124 
Ark.  127,  186  S.  W.  601. 

Georgia.  Landrum  v.  Western 
&  A.  R.  Co.,  146  Ga.  88,  90  S.  E. 
710. 

Illinois.  Patry  v.  Chicago  &  W. 
I.  R.  Co.,  265  111.  310,  106  N.  E. 
843. 

Indiana.     Chicago   &   E.   R.   Co. 

V.  Feightner,  Ind.  App.  , 

114  N.  E.  659;  Cincinnati,  H.  &  D. 

Ry.   Co.   V.   Gross,  Ind.   App. 

,  111  N.  E.  653. 

Kansas.  Barker  v.  Kansas  City 
M.  &  0.  R.  Co.,  88  Kan.  767,  43  L. 
R.  A.   (N.  S.)   1121,  129  Pac.  1151. 

Kentucky.  Chesapeake  &  O.  Ry. 
Co.  V.  Harmon's  Adm'r,  173  Ky.  1, 


189  S.  W.  1135;  Schaeffer  v.  Ill- 
inois Cent.  R.  Co.,  172  Ky.  337. 
189  S.  W.  237;  Norfolk  &  W.  Ry. 
Co.  V.  Short's  Adm'r,  171  Ky.  647, 
188  S.  W.  786. 

Louisiana.  Gordon  v.  New  Or- 
leans Great  Northern  R.  Co.,  135 
La.  137,  64  So.  1014. 

Minnesota.  Hurley  v.  Illinois 
Cent.  R.  Co.,  133  Minn.  101,  157 
N.  W.  1005;  Lewis  v.  Denver  &  R. 
G.  R.  Co.,  131  Minn.  122,  154  N. 
W.  945;  Crandall  v.  Chicago  Great 
Western  R.  Co.,  127  Minn.  498,  150 
N.  W.  165. 

Mississippi.  New  Orleans,  M.  & 
C.  R.  Co.  V.  Jones,  111  Miss.  852, 
72  So.  681. 

Missouri.  Miller  v.  Kansas  City 
Western  R.  Co.,  180  Mo.  App.  371, 
168  S.  W.  336. 

Montana.  Alexander  v.  Great 
Northern  R.  Co.,  51  Mont.  565, 
154  Pac.  914. 

New  York.  Rodgers  v.  New 
York,  Cent.  &  H.  River  R.  Co., 
171  N.  Y.  App.  Div.  385,  157  N.  "". 
Supp.  83. 

North  Carolina.  Hinson  v.  At- 
lanta &  C.  Air  Line  R.  Co.,  172  N. 
C.  646,  90  S.  E.  772. 

Oklahoma.     Wichita  Falls  &  N. 

W.  Ry.  Co.  V.  Puckett,  Okla. 

,   157    Pac.   112;    Atchison,   T. 

&  S.  F.  R.  Co.  V.  Pitts,  44  Okl'^.. 
604,  9  N.  C.  C.  A.  545,  145  Pac. 
1148. 

Oregon.  Kamboris  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  75 
Ore.  358,  146  Pac.  1097. 

Pennsylvania.  Hogarty  v.  Phil- 
adelphia &  R.  Ry.  Co.,  245  Pa.  443, 
91  Atl.   854. 


^  420]     Scope,   Validity    and    FIffect   of   Act. 


19 


In  the  Second  Employers'  Liability  Cases,-"  the 
Supreme  Court  of  the  United  States  formulated  some 
general  rules  to  be  applied  in  determining  when  a  rail- 
road employe  is  engaged  in  interstate  commerce,  but 
these  rules,  necessarily  so,  are  vague  and  indefinite  so 
that  the  question  of  wlien  a  railroad  company  is  en- 
gaged in  interstate  commerce  or  when  a  servant  is  em- 
ployed in  such  commerce,  was  necessarily  left  to  be  de- 


Texas.    Chicago,  R.  I.  &  G.  Ry. 

Co.  V.  Cosio,  Tex.  Civ.   App. 

,  182  S.  W.  83. 

Utah.  Grow  v.  Oregon  Short 
Line  R.  Co.,  44  Utah  160,  Ann.  Cas. 
1915B  481.  138  Pac.  398. 

Wesrt  Virginia.  Watts  v.  Ohio 
Valley  Elec.  R.  Co..  78  W.  Va.  144, 
88  S.  E.  659. 

Wisconsin.  Jacoby  v.  Chicago. 
M.  &  St.  P.  R.  Co.,  16.5  Wis.  610, 
161  N.  W.  7.51,  164  N.  W.  88;  Gray 
V.  Chicago  &  N.  W.  Co.,  153  Wia. 
637,   142   N.  W.   505. 

"Thus  it  Is  essential  to  a  right 
of  recovery  under  the  act  not 
only  that  the  carrier  be  engaged 
in  interstate  commerce  at  the  time 
of  the  injury  but  also  that  the 
person  suffering  the  injury  be 
then  employed  by  the  carrier  in 
such  commerce.  And  so  it  re- 
sults where  the  carrier  is  also 
engaged  in  interstate  commerce  or 
in  what  is  not  commerce  at  all, 
that  one  who  while  employed 
therein  by  the  carrier  suffers  in- 
jury through  its  negligence,  or 
that  of  some  of  its  officers,  agents 
or  employes,  must  look  for  redress 
to  the  laws  of  the  State  wherein 
the  injury  occurs,  save  where  it 
results  from  the  violation  of  some 
Federal  statute,  such  as  the  Safety 
Appliance  Acts."  Shanks  v.  Dela- 
ware, L.  &  W.  R.  Co.,  239  U.  S. 
556,  60  L.  Ed.  436,  36  Sup.  Ct.  188. 

"Three  things  must  appear  to 
bring   a   case   within   the   Federal 


Employers'  Liability  Act:  (1)  The 
carrier  must  engage  in  interstate 
commerce;  (2)  it  must  at  the 
time  of  the  injury  in  question  be 
engaged  in  commerce  of  that 
character,  as  contradistinguished 
from  such  purely  local  matters  as 
it  may  engage  in;  (3)  the  injured 
servant  must  also  at  the  time  of 
receiving  his  injury  be  engaged 
in  interstate  commerce."  Ross  v. 
Sheldon,  176  Iowa  618,  154  N.  W. 
499. 

"To  warrant  a  recovery,  the  em- 
ployer must  be  a  railroad  com- 
pany engaged  in  interstate  com- 
merce, and  the  employe  must  be 
engaged  in  such  commerce  at 
the  time  of  the  injury.  These  two 
circumstances  must  exist,  because 
the  right  is  purely  statutory,  and 
the  terms  of  the  statute  require 
their  concurrence."  McKee  v. 
Ohio  Valley  Elec.  R.  Co.,  78  W.  Va. 
131.  88  S.  E.  616. 

26.  223  U.  S.  1.  56  L.  Ed.  327, 
32  Sup.  Ct.  169,  1  N.  C.  C.  A.  875. 
38  L.  R.  A.  (N.  S.)  44.  The  Second 
Employers'  Liability  Cases  includ- 
ed the  following  cases  appealed 
from  different  courts  and  decided 
by  the  United  States  Supreme 
Court  at  the  same  time  and  in  one 
opinion  in  which  all  the  judges 
concurred:  Mondou  v.  New  York. 
N.  H.  &  H.  R.  Co.:  Northern  Pac. 
R.  Co.  V.  Babcock:  New  York,  N. 
H.  &  H.  R.  Co.  V.  Walsh :  Walsh  v. 
New  York,  N.  H.  &  H.  R.  Co. 


720  Injuries   to   Interstate   Employes.         [§  420 

termined  by  all  the  facts  of  each  particular  case,  and 
conflicting  views  of  courts  on  similar  facts  have  been 
the  result.  These  general  rules  as  to  the  extent  of  the 
power  of  Congress  in  dealing  with  ilio  relation  of  rail- 
roads and  their  employes  while  the  one  is  engaged  and 
the  other  is  employed  in  interstate  commerce,  were 
summarized  by  the  courts  as  follows:  "'The  clauses  in 
the  Constitution  (Art.  1,  sec.  8,  c.  I]  and  IS)  which  con- 
fer upon  Congress  the  power  Uo  regulate  commerce 
*  *  *  among  the  several  States'  and  'to  make  all 
laws  which  shall  be  necessary  and  proper'  for  the  pur- 
pose have  been  considered  by  this  court  so  often  and  in 
such  varied  connections  that  some  propositions  bearing 
upon  the  extent  and  nature  of  this  power  have  come 
to  be  so  firmly  settled  as  no  longer  to  be  open  to  dis- 
pute, among  them  being  these:  1.  The  term  'commerce' 
comprehends  more  than  the  mere  exchange  of  goods. 
It  embraces  commercial  intercourse  in  all  its  branches, 
including  transportation  of  passengers  and  property  by 
common  carriers,  whether  carried  on  by  water  or  by 
land.  2.  The  phrase  'among  the  several  States'  marks 
the  distinction,  for  the  purpose  of  governmental  regu- 
lation, between  commerce  which  concerns  two  or  more 
States  and  commerce  which  is  confined  to  a  single 
State  and  does  not  affect  other  States,  the  power  to 
regulate  the  former  being  conferred  upon  Congress  and 
the  regulation  of  the  latter  remaining  with  the  States 
severally.  3.  'To  regulate,'  in  the  sense  intended,  is  to 
foster,  protect,  control,  and  restrain,  with  appropriate 
regard  for  the  welfare  of  those  who  are  immediately 
concerned  and  of  the  public  at  large.  4.  This  power  over 
commerce  among  the  States,  so  conferred  upon  Con- 
gress, is  complete  in  itself,  extends  incidentally  to  every 
instrument  and  agent  by  which  such  commerce  is  car- 
ried on,  may  be  exerted  to  its  utmost  extent  over  every 
part  of  such  commerce,  and  is  subject  to  no  limitations 
save  such  as  are  prescribed  in  the  Constitution.  But, 
of  course,  it  does  not  extend  to  any  matter  or  thing 
which  does  not  have  a  real  or  substantial  relation  to 
some  part  of  such  commerce.  5.  Among  the  instruments 
and  agents  to  which  the  power  extends  are  the   rail- 


§'4l'lJ        Scoj'K,     \'a]. 11)11  V     AM)     h^FFKf'T     OK     AcP 


'21 


roads  over  wliicli  ti-aiisi)ortatioii  from  oiu*  state  to  an- 
other is  conducted,  tlie  en<;iiies  and  cars  ])y  wliicli  sncli 
transportation  is  effected,  and  all  wlio  aic  in  any  wise 
en^a,i;ed  in  sncli  trjinsportat ion,  wlietlier  as  connnon 
carriers  or  as  tlieir  enii)loyes.  (J.  ^J'lie  duties  of  common 
(carriers  in  respect  ol"  llie  safety  of  their  employes,  wliile 
botli  are  en«?a^ed  in  commerce  amon^'  tlie  States,  and 
the  liability  of  the  former  for  injuries  sustained  ])y  the 
latter,  wliile  both  are  so  engaged,  have  a  real  or  sub- 
stantial relation  to  such  commerce,  and  llici-efore  are 
within  the  range  of  this  power." 

§  421.  Exclusiveness  of  the  Federal  Act  and  its  Ef- 
fect upon  State  Laws.  As  to  all  injuries  or  deaths  liap- 
pening  under  tiie  conditions  prescrilx'd  in  the  Phnploy- 
ers'  Liability  Act,  i.e.,  while  the  canier  is  engaged 
and  the  servant  is  employed  in  interstate  commerce,  the 
remedy  given  by  the  statute  is  exclusive,  and  all  state 
laws  in  so  far  as  they  attempt  to  or  do  cover  the  same 
field,  are  superseded."    The  statute  supersedes  all  state 


27.  United  States.  Jacobs  v. 
Southern  R.  Co.,  241  U.  S.  229, 
60  L.  Ed.  970,  36  Sup.  Ct.  588; 
Texas  &  P.  Ry.  Co.  v.  Rigsby,  241 
U.  S.  33,  60  L.  Ed.  874,  36  Sup. 
Ct.  482;  Seaboard  Air  Line  Ry. 
Co.  V.  Kenney,  240  U.  S.  489,  60 
L.  Ed.  762,  36  Sup.  Ct.  458;  Pecos 
&  N.  T.  Ry.  Co.  V.  Rosenbloom. 
240  U.  S.  439,  60  L.  Ed.  730,  36 
Sup.  Ct.  390;  Chicago,  R.  I.  &  F. 
Ry.  Co.  V.  Wright.  239  U.  S.  548, 
60  L.  Ed.  431,  36  Sup.  Ct.  185; 
Chicago,  R.  I.  &  P.  R.  Co.  v. 
Devine,  239  U.  S.  52,  60  L.  Ed. 
140,  36  Sup.  Ct.  27;  LouisviUe  & 
N.  R.  Co.  V.  Rhoda,  238  U.  S.  608, 
59  L.  Ed.  1487,  35  Sup.  Ct.  662; 
Seaboard  Air  Line  Ry.  Co.  v. 
Thornton,  238  U.  S.  60G,  59  L. 
Ed.  1485.  35  Sup.  Ct.  601;  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Craft, 
237  U.  S.  648,  59  L.  Ed.  1160.  35 
Sup.  Ct.  704:   Toledo,  St.  L.  &  W. 


R.  Co.  V.  Slavin,  236  U.  S.  454, 
58  L.  Ed.  671,  35  Sup.  Ct.  306; 
Wabash  R.  Co.  v.  Hayes,  234  U. 
S.  86,  58  L.  Ed.  1226,  34  Sup.  Ct. 
729,  6  N.  C.  C.  A.  224,  Seaboard 
Air  Line  Ry.  Co.  v.  Horton,  233 
U.  S.  492,  58  L.  Ed.  1062,  34  Sup. 
Ct.  635,  8  N.  C.  C.  A.  834,  L.  R. 
A.  1915C  1,  Ann.  Cas.  1915B  475; 
St.  Louis,  L  M.  &  S.  R.  Co.  v. 
Hesterly,  228  U.  S.  702,  57  L.  Ed. 
10.11,  33  Sup.  Ct.  703;  In  re  Second 
Employers'  Liability  Cases,  223  U. 
S.  1,  56  L.  Ed.  327.  32  Sup.  Ct.  169. 
1  N.  C.  C.  A.  875,  38  L.  R.  A.  (X. 
S.)  44;  St.  Louis  jNIerchants' 
Bridge  Terminal  R.  Co.  v.  Schuer- 
man,  150  C.  C.  A.  203,  237  Fed.  1; 
Waters  v.  Guile,  148  C.  C.  A.  298, 
234  Fed.  532;  Grand  Trunk  R.  Co. 
of  Canada  v.  Knapp,  147  C.  C.  A. 
624,  233  Fed.  950,  13  N.  C.  C.  A. 
1100. 


1    Control    CiiriicTj 


722  Injuries   to   Interstate   Employes.         [§  421 

and    territorial    laws   over    the   matter    with    which    it 


Alabama.  Louisville  &  N.  R.  Co. 
V.  Carter,  195  Ala.  382,  Ann.  Cas. 
1917E  292,  70  So.  655;  Southern 
R.  Co.  V.  Peters,  194  Ala.  94.  69 
So.  611;  Atlantic  Coast  Line  R. 
Co.  V.  Jones.  12  Ala.  App.  419.  67 
So.  6.32. 

Arkansas.  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Pearce,  118  Ark.  6,  L.  R. 
A.   1915F  551,   175   S.   W.   1160. 

California.  Smithson  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  174  Cal. 
148,  162   Pac.   111. 

Colorado.      Denver    &    R.    G.    R. 

Co.  V.  Wilson,  Colo.  ,  163 

Pac.  857. 

Florida.     Seaboard  Air  Line  Ry. 

Co.  V.  Hess,  Fla.  ,  74  So. 

500;     Louisville    &    N.    R.    Co.    v. 

Rhoda,  Fla.  ,  74  So.  19; 

Flanders  v.  Georgia  Southern  & 
F.  R.  Co..  68  Fla.  479,  67  So.  68. 

Georgia.    Hardy  v.  Atlanta  &  W. 

P.  R.  Co.,  Ga.  App.  ,   93 

S.  E.  18;  Landrum  v.  Western  & 
A.  R  Co.,  146  Ga.  88,  90  S.  E. 
710;  Louisville  &  N.  R.  Co.  v. 
Kemp.  140  Ga.  657,  79  S.  E.  558. 

Illinois.  Chicago  Junct.  R.  Co. 
v.  Industrial  Board  of  Illinois, 
277  111.  512,  115  N.  E.  647;  Devine 
v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  266 
111.  248,  Ann.  Cas.  1916B  481,  107 
N.  E.  595;  Wagner  v.  Chicago  & 
A.  R.  Co.,  265  111.  245,  Ann.  Cas. 
1916A  778,  106  N.  E.  809. 

Indiana.     Grand  Trunk  Western 

Ry.  Co.  V.  Thrift  Trust  Co.,  

Ind.    App.    ,    115    N.    E.    685; 

Vandalia  R.  Co.  v.  Stringer,  182 
Ind.  676,  106  N.  E.  865,  107  N.  E. 
673.  Southern  R.  Co.  v.  Hower- 
ton,  182  Ind.  208,  105  N.  E.  1025, 
106  N.   E.  369. 


Kansas.  Giersch  v.  Atchison, 
T.  &  S.  P.  R.  Co.,  98  Kan.  452, 
158  Pac.  54;  Cole  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  92  Kan.  132,  139 
Pac.  1177. 

Kentucky.  Davis'  Adm'r  v.  Cin- 
cinnati, N.  O.  &  T.  P.  R.  Co.,  172 
Ky.  55,  188  S.  W.  1061;  Mc- 
Garvey's  Guardian  v.  McGarvey's 
Adm'r,  163  Ky.  242,  173  S.  W.  765; 
111.  Cent.  R.  Co.  v.  Doherty's 
Adm'r,  153  Ky.  363,  49  L.  R.  A.  (N. 
S.)   31,  155  S.  W.  1119. 

Louisiana.  Penny  v.  New 
Orleans  Great  Northern  R.  Co., 
135  La.  962,  66  So.  313. 

Massachusetts.  Corbett  v.  Bos- 
ton &  M.  R.  R.,  219  Mass.  351,  9 
N.  C.  C.  .1.  691,  107  N.  E.  60. 

Minnesota.  Manning  v.  Chi- 
cago Great  Western  R.  Co.,  135 
Minn.  229,  15  N.  C.  C.  A.  591,  160 
N.   W.   787. 

Mississippi.  New  Orleans,  M.  & 
C.  R.  Co.  V.  Jones.  Ill  Miss.  852, 
72   So.   681. 

Missouri.  Koukouris  v.  Union 
Pac.  R.  Co.,  193  Mo.  App.  495,  186 
S.  W.  545;  Sells  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  266  Mo.  155,  181 
S.  W.  106;  Moliter  v.  Wabash  R. 
Co.,  180  Mo.  App.  84,  168  S.  W. 
250;  Vaughan  v.  St.  Louis  &  S. 
F.  R.  Co.,  177  Mo.  App.  155,  164 
S.  W.  144;  Rich  v.  St.  Louis  &  S. 
F.  R.  Co.,  166  Mo.  App.  379,  148 
S.  W.   1011. 

New  Hampshire.    Cantin  v.  Glen 

Junct.    Transfer    Co.,    N.    H. 

,     96    Atl.    303;      Shannon   v. 

Boston  &  M.  R.  R.,  77  N.  H.  349, 
92    Atl.    167. 

New  Jersey.  Roun.saville  v.  Cen- 
tral  R.    Co.   of   New    Jersey,  


§'  421]     Scope,   Validity    and    Effect   of  Act. 


723 


deals;''  for,  when  Congress  legislates  upon  a  particular 


N.  J.  L.  ,   101  Atl.  182;    West 

Jersey  Trust  Co.  v.  Philadelphia 
&  R.  Ry.  Co.,  88  N.  J.  L.  102,  95 
Atl.  753;  Parker  v.  Atlantic  City 
R.  Co..  87  N.  J.  L.  148,  93  Atl.  574. 
New  York.  RiKssell  v.  Erie  R. 
Co.,  177  N.  Y.  A  pp.  Div.  13,  163 
N.  Y.  Supp.  893;  Rodgers  v.  Now 
York  Cent.  &  H.  River  R.  Co.,  171 
N.  Y.  App.  Div.  385,  157  N.  Y. 
Supp.  83;  Gee  v.  Lehigh  Valley 
R.  Co.,  163  N.  Y.  App.  Div.  274. 
148  N.  Y.  Supp.  882;  Burnett  v. 
Erie  R.  Co.,  159  N.  Y.  App.  Div. 
712,   144   N.  Y.  Supp.   969. 

North  Dakota.  Hein  v.  Great 
Northern  R.  Co.,  34  N.  D.  440, 
159  N.  W.  14;  Manson  v.  Great 
Northern  R.  Co.,  31  N.  D.  643, 
155  N.  W.  32. 
Oklahoma.     Chicago,  R.  I.  &   P. 

Ry.    Co.    V.    Jackson,    Okla. 

,  160  Pac.  736. 

Oregon.  Kamboris  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  75  Ore. 
358.  146  Pac.  1097;  Oberlin  v 
Oregon-Washington  R.  &  Nav.  Co., 
71  Ore.  177,  142  Pac.  554. 

Pennsylvania.  Hogarty  v.  Phil- 
adelphia &  R.  D.  Co.,  255  Pa.  236. 
99  Atl.  741. 

South  Carolina.  Jones  v.  Char- 
leston &  W.  C.  R.  Co.,  98  S.  C. 
197,   82   S.   E.   415. 

Tennessee.  Howard  v.  Nash- 
ville, C.  &  St.  L.  R.  Co.,  133  Tenn. 
19,  L.  R.  A.  1916B  794,  Ann.  Cas. 
1917A  844,  179  S.  W.  380. 

Texas.    Gulf,  C.  &  S.  F.  Ry.  Co. 

V.  Hall,  Tex.  Civ.  App.  , 

196  S.  W.  613;   Ft.  Worth  &  R.  G. 

Ry.    Co.    V.    Bird,    Tex.    Civ. 

App.  ,  196  S.  W.  597;   Geer  v. 

St.  Louis,  S.  F.  &  T.  Ry.  Co.,  

Tex.  ,  194  S.  W.  939;  Chicago. 

R.  I.  &  G.  Ry.  Co.  V.  De  Bord. 

Tex. ;  192  S.  W.  767;  Missouri, 


K.  &  T.  Ry.  Co.  of  Texas  v.  Moon- 

ey,  Tex.  Civ.  App.  ,   181 

S.  W.  543. 

Vermont.     Robie  v.  Boston  &  M. 

K.  R..  Vt.  .  100  Atl.  925; 

White's  Adni'x  v.  Central  Ver- 
mont R.  Co..  87  Vt.  330,  89  Atl. 
618. 

West  Virginia.  Easter  y.  Vir- 
ginian R.  Co.,  76  W.  Va.  383,  11 
N.  C.  C.  A.   101,  86   S.   E.   37. 

Wisconsin.  O'Connor  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  163  Wis.  653, 
158  N.  W.  343. 

The  Federal  act  is  exclusive  and 
paramount  in  regulating  the  re- 
lations of  employers  and  employ- 
es engaged  in  interstate  commerce 
by  railroad.  Carey  v.  Grand  Trunk 

W.    R.    Co.,   Mich.   ,    166 

N.  W.  492. 

28.  United  States.  Erie  R.  Co 
V.  Winfield,  244  U.  S.  170,  61  L. 
Ed.  1057,  37  Sup.  Ct.  556,  14  N. 
C.  C.  A.  957;  New  York  Cent.  R. 
Co.  v.  Winfield,  244  U.  S.  147,  61 
L.  Ed.  1045,  37  Sup.  Ct.  546,  14 
N.  C.  C.  A.  680,  Ann.  Cas.  1917D 
1139;  Spokane  &  I.  E.  R.  Co.  v. 
Campbell,  241  U.  S.  497,  60  L.  Ed. 
1125,  36  Sup.  Ct.  683,  12  N.  C.  C. 
A  1083;  Chicago,  R.  I.  &  P.  R. 
Cc.  V.  Wright,  239  U.  S.  548,  60 
L.  Ed.  431,  36  Sup.  Ct.  185;  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  De- 
vine,  239  U.  S.  52,  60  L.  Ed.  140, 
36  Sup.  Ct.  27;  Toledo,  St.  L.  & 
W.  R.  Co.  V.  Slavin,  236  U.  S.  454, 
58  L.  Ed.  671,  35  Sup.  Ct.  306; 
Wabash  R.  Co.  v.  Hayes,  234  U. 
S.  86,  58  L.  Ed.  1226,  34  Sup.  Ct. 
729,  6  N.  C.  C.  A.  224;  Taylor 
V.  Taylor.  232  U.  S.  363,  58  L.  Ed. 
638,  34  Sup.  Ct.  350,  6  N.  C.  C.  A. 
436. 


724 


Injuries   to   Interstate    Employes.         [^  421 


subject  matter  under  its  constitutional  power  to  regulate 
commerce,  state  legislatures  have  no  right  to  interfere 
by  way  of  complementary  legislation  or  to  prescribe 
additional  regulations  covering  the  same  field.  In  such 
a  case  the  legislation  of  Congress,  in  what  it  does  pre- 
scribe, manifestly  indicates  that  it  does  not  intend  that 
there  shall  be  any  further  legislation  to  act  upon  the 
same  subject  matter.-"  If  the  injury  or  death  occurs 
under  the 'circumstances  defined  in  the  act,  there  is  no 
choice  of  remedy  between  a  state  and  the  federal  law.^° 
Since  the  statute  is  exclusive,  a  servant,  injured 
while  employed  in  interstate  commerce  by  a  common 
carrier  by  railroad  engaged  in  such  commerce,  must 
bring  his  action  upon  this  statute  and  no  other;  and 
the  same  is  true  as  to  the  personal  representative  in 
case  of  death.^^     State  statutes  upon  negligence,   con- 


California.  Smithson  v.  Atchi- 
son, T.  &  S.  P.  R.  Co.,  174  Cal.  148, 
162   Pac.    111. 

Illinois.  Staley  v.  Illinois  Cent. 
R.  Co.,  268  111.  356,  L.  R.  A.  1916A 
450,   109   N.  E.  342. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  V.  Clarke,  169  Ky 
662,  185  S.  W.  94. 

Missouri.  Koukouris  v.  Union 
Pac.  R.  Co.,  193  Mo.  App.  495,  186 
S    W.  545. 

Oklahoma.  St.  Louis  &  S.  F.  R. 
Co.  V.  Snowden,  48  Okla.  115,  149 
Pac.  1083. 

Oregon.  Kamboris  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  75  Ore. 
358,  146  Pac.  1097. 

Texas.  Atchison,  T.  &  8.  F.  Ry. 
Co.  V.  Tack,  61  Tex.  Civ.  App.  551, 
130  S.  W.  596. 

Washington.  Lauer  v.  Northern 
Pac.  R.  Co.,  83  Wash.  465,  145  Pac. 
606. 

29.  Prigg  V.  Pennsylvania,  16 
Pet.    (U.   S.)    539,   10   L.   Ed.   1060. 

30.  Chicago,  R.   I.  &  P.  R.  Co. 


V.  Wright,  239  U.  S.  548,  60  L.  Ed. 
431,  36  Sup.  Ct.  185;  Wabash  R. 
Co.  V.  Hayes,  234  U.  S.  86,  58  L. 
Ed.  1226,  34  Sup.  Ct.  729,  6  N.  C. 
C.  A.  224. 

31.  United  States.  Gulf,  C.  &  S. 
F.  R.  Co.  V.  McGinnis,  228  U.  S. 
173,  57  L.  Ed.  785,  33  Sup.  Ct.  426, 
3  N.  C.  C.  A.  806;  Michigan  Cent. 
R.  Co.  V.  Vreeland,  227  U.  S.  59, 
57  L.  Ed.  417,  33  Sup.  Ct.  192, 
Ann.  Cas.  1914C  176;  American 
R.  Co.  of  Porto  Rico  v.  Birch,  224 
U.  S.  547,  56  L.  Ed.  879,  32  Sup. 
Ct.  603. 

Connecticut.  Vickery  v.  New 
London  Northern  R.  Co.,  87  Conn. 
634,  89  Atl.  277. 

Massachusetts.  Lynch  v.  Bos- 
ton &  M.  R.  R.,  Mass.  , 

116  N.  E.  401. 

Mississippi.  New  Orleans,  M.  & 
C.  R.  Co.  V.  Jones,  111  Miss.  852, 
72  So.  681. 

New  York.  Gee  v.  Lehigh  Val- 
ley R.  Co.,  163  N.  Y.  App.  Div. 
274,   148  N.   Y.   Supp.  882. 


§  421]     ScopK,    Validity    and    Effect   of   Act.  725 

tribiitory  ne^li^ence,  assumption  of  risk  or  who  may  ro- 
cover  in  case  of  death,  are  nugatory  as  to  all  casualties 
happening  under  the  conditions  described  in  the  act, 
that  is,  while  botli  carrier  and  employe  are  engaged  in 
interstate  commerce.^''  **That  the  act  is  comprehensive 
and  also  exclusive,"  said  Mr.  Justice  Van  Devanter,'^  ''is 
distinctly  recognized  in  rei)eated  decisions  of  this  court. 
Thus,  in  Missouri,  K.  &  T.  R.  Co.  v.  Wulf,  226  U.  8.  570, 
576,  and  other  cases,  it  is  pointed  out  that  the  subject 
which  the  act  covers  is  'the  responsibility  of  interstate 
carriers  by  railroad  to  their  employees  injured  in  such 
commerce;'  in  Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  8. 
59,  66,  67,  it  is  said  that  'we  may  not  piece  out  this  act  of 
Congress  by  resorting  to  the  local  statutes  of  the  state 
of  procedure  or  that  of  the  injury;'  that  by  it  'Con- 
gress has  undertaken  to  cover  the  subject  of  the  liabil- 
ity of  railroad  companies  to  their  employees  injured 
while  engaged  in  interstate  commerce,'  and  that  it  is 
'paramount  and  exclusive;'  in  North  Carolina  R,  Co.  v. 
Zachary,  232  U.  8.  248,  256,  it  is  held  that  where  it  ap- 
pears that   the  injury  occurred   while  the  carrier  was 

32.     United  States.     Toledo,  St.  Massachusetts.     Corbett   v.   Bos- 

L.  &  W.  R.  Co.  V.  Slavin,  236   U.  ton  &  M.  li.   R.,  219   Mass.   351,   j 

5  454,  58  L.  Ed.   671,  35  Sup.  Ct.  N.  C.  C.  A.  691,  107  N.  E.  60. 
306;     Seaboard  Air   Line  Ry.   Co.  Mississippi.     New  Orleans,  M.  & 
V.    Horton,    233    U.    S.    492,    58   L.  C.  R.  Co.  v.  Jones,  111  Miss.  852, 
Ed.  1062,  34  Sup.  Ct.  625,  8  N.  C.  72  So.  681. 

C.  A.  834,  L.  R.  A.  1915C  1,  Ann.  Missouri.     Vaughan  v.  St.  Louis 

Cas.   1915B  475;     St.  Louis,   S.   F.       &  S.  F.  R.  Co.,  177  Mo.  App.  155, 

6  T.    R.    Co.   V.    Seale,    229    U.    S.       164  S.  W.  144. 

156,    57   L.    Ed.    1129.   33    Sup.   Ct.  Korth    Dakota.      Hein    v.    Great 

651,    Ann.    Cas.    1914C    156;      De  Northern  R.  Co.,  34  N.  D.  440,  159 

Atley  V.  Chesapeake  &  O.  Ry.  Co.,  N.   W.    14. 

201  Fed.  591.  Pennsylvania.  Hogarty  v.  Phil- 
California.      Smithson   v.    Atchl-  adelphia  &  R.  R.  Co.,  245  Pa.  443, 

son,   T.   &   S.    P.   R.   Co.,    174   Cal.  91  Atl.  854. 

148,  162  Pac.  111.  Texas.     St.   Louis   Scuthwestern 

Florida.     Louisville  &  N.  R.  Co.       Ry.  Co.  v.  Brothers,  Tex.  Civ. 

V.  Rhoda,  —  Fla.  ,  74  So.  19;       App.  ,  165  S.  W.  488. 

Flanders    v.    Georgia    Southern    &  33.     New  York  Cent.   R.   Co.   v. 

F.  R.  Co..  68  Fla.  479,   67   So.  68.  Winfield,    244    U.    S.    147,    61    L. 

Georgia.      Landrum    v.    Western  Ed.   1045,   37   Sup.   Ct.   546,    14   N. 

&  A.  R.  Co.,  146  Ga.   88,  90  S.  E.  C.    C.    A.    680,    Ann.    Cas.'  1917D 

710.  1139. 


726  Injuries   to   Interstate   Employes.         [>^  421 

engaged  and  the  employee  employed  in  interstate  com- 
merce, the  Federal  act  governs  to  the  exculsion  of  the 
state  law;  in  Seaboard  Air  Line  E.  Co.  v.  Horton,  supra, 
pp.  501,  503,  it  is  said  not  only  that  Congress  intended 
'to  exclude  responsibility  of  the  carrier  to  its  employees' 
in  the  absence  of  negligence  but  that  it  is  not  conceiv- 
able that  Congress  'intended  to  permit  the  legislatures 
of  the  several  states  to  determine  the  effect  of  contri- 
butory negligence  and  assumption  of  risk,  by  enacting 
statutes  for  the  safety  of  employees,  since  this  would  in 
effect  relegate  to  state  control  two  of  the  essential  fact- 
ors that  determine  the  responsibility  of  the  employer;' 
and  in  Wabash  E.  Co.  v.  Haynes,  234  U.  S.  86,  89,  it  is 
said:  'Had  the  injury  occurred  in  interstate  commerce, 
as  was  alleged,  the  Federal  act  undoubtedly  would  have 
been  controlling,  and  a  recovery  could  not  have  been 
had  under  the  common  or  statute  law  of  the  state;  in 
other  words,  the  Federal  act  would  have  been  exclusive 
in  its  operation,  not  merely  cumulative  (citing  cases). 
On  the  other  hand,  if  the  injury  occurred  outside  of 
interstate  commerce,  the  Federal  act  was  without  ap- 
plication and  the  law  of  the  state  was  controlling.'  The 
act  is  entitled,  'An  Act  relating  to  the  Liability  of  Com- 
mon Carriers  by  Eailroad  to  Their  Employees  in  Cer- 
tain Cases,'  and  the  suggestion  is  made  that  the  words 
'in  certain  cases'  require  that  the  act  be  restrictively 
construed.  But  we  think  these  words  are  intended  to  do 
no  more  than  to  bring  the  title  into  reasonable  accord 
with  the  body  of  the  act,  which  discloses  in  exact  terms 
that  it  is  not  to  embrace  all  cases  of  injury  to  the  em- 
ployees of  such  carriers,  but  only  such  as  occur  while 
the  carrier  is  engaging  and  the  employee  is  employed 
in  'commerce  between  any  of  the  several  states,  etc. 
See  Employers'  Liability  Cases  (Howard  v.  Illinois  C. 
E.  Co.)  207  U.  S.  463." 

§  422.  State  Workmen's  Compensation  Laws  Super- 
seded by  Federal  Act  as  to  Injuries  Arising  in  Inter- 
state Commerce.  The  Federal  Employers'  Liability  Act 
proceeds  upon  the  principle  which  regards  negligence  as 


§  422]     Scope,   Validitv   and    Ki-fkct   of   Act.  727 

the  basis  of  duty  to  make  eomponsatioii''^  and  excludes 
the  existence  of  such  a  duty  in  the  absence  of  negli- 
gence; but  Congress  intended  the  statute  to  be  as  com- 
])roliensive  in  those  instances  in  wliicli   it  excludes  lia- 
bility as  of  those  in  wlii(;h  liability  is  inii)osed.     It  es- 
tablished a  rule  or  regulation  which  is  intended  to  ap- 
pear uniformly  in  all  the  states  as  to  all  employes  of 
common  carriers  by  railroad  working  in  interstate  com- 
merce, and,  in  that  field,  it  is  l)oth  paramount  and  ex- 
clusive.   State  workmen's  compensation  laws  which  pro- 
vide a  compensation  to  employes  without  regard  to  the 
question    of    the    employers'    default    or   neglect,    have 
therefore  no   application  to  employes  of  common   car- 
riers  by   railroad   killed    or   injured    while  engaged    in 
interstate  and   foreign  commerce,   even  in  the   absence 
of  negligence;^'  for,  when  Congress  legislates  concern- 
ing a  subject  matter  of  interstate  commerce,  all  state 
laws  covering  the  same  field  are  necessarily  superseded 
by  reason  of  the  supremacy  of  the  national  authority. 
TTnder  the  commerce  clause,  Congress  may  regulate  the 
liabilities  of  common  carriers  and  the  rights  of  their 
employes  arising  out  of  injuries  sustained  by  the  latter 
when  both   are  engaged   in  interstate  commerce.     The 
national  legislative  body  acted  upon  the  subject  in  pass- 
ing the  Employers'  Liability  Act,   and  hence,   awards 
under  state  compensation  laws  to  employes  of  common 
carriers  by  railroad  killed  or  injured  while  engaged  in 
interstate  commerce,  are  void.-^" 

34.  Chapter  27,  infra.  S8  N.  J.  L.  619,  96  Atl.  394:    West 

35.  Erie  R.  Co.  v.  Winfield.  Jersey  Trust  Co.  v.  Philadelphia 
244  U.  S.  170.  61  L.  Ed.  1057,  &  R.  R.  Co.,  88  N.  .1.  L.  102.  95 
37  Sup.  Ct.  556.  14  N.  C.  C.  A.  957;  Atl.  753;  Rounsaville  v.  Central 
New  York  Cent.  R.  Co.  v.  Win-  R.  Co.,  87  N.  J.  L.  371,  94  Atl.  392. 
field,  244  U.  S.  147.  61  L.  Ed.  36.  The  widow  of  an  employe 
1045.  37  Sup.  Ct.  54e.  14  N.  C.  engaged  in  interstate  commerce 
C.  A.  680,  Ann.  Cas.  1917D  1139;  is  not  entitled  to  an  award  under 
Smith  V.  Industrial  Accident  a  state  workmen's  compensation 
Commission  of  California,  26  Cal.  law.  Plass  v.  Central  New  Eng- 
App.  560,  147  Pac.  600;  Staley  v.  land  Ry.  Co.,  221  N.  Y.  472,  117  N. 
Illinois  Cent.   R.  Co.,  268  111.  356,  E.   952. 

L.  R.  A.  1916A  450.  100  N.  E.  342.  A    conductor    of    an     interstate 

Contra:       Winfirld  v.  Krio  R.  Co..       train     cannot     recover    componsa- 


728  Injuuies   to   Interstate   Employes.         [^  423 

§  423.    Common  Law  Right  of  Parents  to  Recover 
for  Loss  of  Services  of  Minor  Employe  Injured,  Super- 
seded.    AVhon  it  appears  in  any  action  by  an  cnii)loye 
against  a  common  carrier  by  railroad  tliat  tlie  injuries 
were   sustained  while  the   company  was  engaged,   and 
while   he    was   employed    in    interstate    commerce,    the 
company's  responsibility  is  governed  by  the  federal  act 
and  its  liability  can  neither  be  extended  nor  abridged 
by  common  or  statutory  laws  of  any  state. ^^     A   suit, 
therefore,  by  a  father  for  the  recovery  for  himself  on 
account  of  expenses  incurred  for  medical  attention  to 
his  son  and  the  loss  of  the  latter 's  services  because  of 
an  injury  sustained  while  he  was  working  in  interstate 
commerce  for  a  common  carrier  by  railroad,  cannot  be 
sustained."    "The  point  in  issue  here,  which  is  whether 
a  father  may  maintain  a  suit  for  loss  of  services  of  his 
minor  son  occasioned  by  injuries  received  while  an  em- 
ploye engaged   by   a   railroad   operating   an   interstate 
business,   has   been   recently   decided  by   the    Supreme 
Court  of  the  United  States  in  the  case  of  New  York 
Central  &  Hudson  River  Railroad  Co.  v.  Tonsellito,  244 
U.  S.   360,   37   Sup.   Ct.   620,   61  L.   Ed.   1194,   decided 
June  4,  1917.     That  case  originated  in  the  state  of  New 
Jersey.    The  Supreme  Court  of  that  state  held  that  the 
federal    Employers'    Liability    Act    did    not    bar    the 
father's  common-law  right  to  sue  for  loss  of  services  of 
a  minor  child.    However,  on  the  writ  of  error  taken  to 
the  Supreme  Court  of  the  United  States  a  majority  of 
that  tribunal   held    to   the   contrary,    and   reversed   the 

tion   under  a  workmen's   compen-  Ed.  671,  35  Sup.  Ct.  306;    Wabash 

sation    law   aUhough    his   employ-  R.  Co.  v.  Hayes,  234     U.  S.  86,  58 

er  had  elected  to  accept  the  pro-  L.  Ed.  1226,  34  Sup.  Ct.  729,  6  N. 

visions    of    the     Act.       Carey     v.  c.  C.  A.  224. 

Grand    Trunk    W.    R.    Co.,    gg     ^^^  York  Cent.  &  H.  River 

Mich.   ,    166    N.    W.    492. 


R.  Co.  V.  TonseUito,  44  U.  S.  360, 
61    L.   Ed.    1194,   37    Sup.    Ct.    620, 


37.     Chicago,  R.  I.  &  P.  R.  Co 
V.  Wright,  239  U.  S.  548,  60  L.  Ed. 

431,      36    Sup.   Ct.    185;     Seaboard  ^^   N.  C.  C.  A.  1072;     Flanders  v. 

Air  Line  R.  Co.  v.  Koennecke,  239  Georgia  Southern  &  F.  R.  Co.,  68 

U.  S.  352,  60  L.  Ed.  324,  36   Sup.  Fla.  479,  67  So.  68.     Contra:     Nel- 

Ct.   126;     Toledo,   St.  L.   &  W.   R.  son    v.    Illinois   Cent.    R.    Co.,    173 

Co.  v.  Slavin,  236  U.  S.  454,  59  L.  Iowa  161,  155  N.  W.  169. 


§  424]     ScopK,    Validity    and    Efkhct   ok   Act. 


729 


jud^iiK'nt  ft'iveii  to  tlio  father  by  the  Xew  Jersey  courts. 
It  is  the  duty  of  tliis  eourt  to  folh)w  the  federal  courts 
on  federal  (luestions."'' 

§  424.  Remedy  Provided  by  Statute  Limited  to  Em- 
ployes Only  of  Common  Carriers  by  Railroad.  While 
tiie  I'ederal  Safety  Appliance  Act  includes  both  em- 
ployes and  travelers  on  railroads  within  its  protection 
when  they  are  injured  as  a  proximate  result  of  a  viola- 
tion of  that  statute,  the  remedial  provisions  of  the 
Federal  Employers'  ijiability  xVct  are  limited  strictly  to 
employes  of  a  common  carrier  by  railroad.*"  Congress 
used  the  word  "employe"  in  the  statute  in  its  natural 
sense,  and  intended  to  describe  the  conventional  rela- 
tion of  employer  and  employe."     An  independent  con- 


39.  Smith    v.    Lusk,    Mo. 

App. ,  198  S.  W.  434. 

40.  United  States.  Oliver  v. 
Northern  Pac.  Ry.  Co.,  196  Fed. 
432. 

Illiuois.  Wagner  v.  Chicago  & 
A.  R.  Co.,  265  111.  245,  Ann.  Cas. 
1916A  778,  106  N.  E.  809. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Walker's  Adm'r,  162  Ky. 
209,  172   S.  W.  517. 

New  Jersey.  Hammill  v.  Penn- 
sylvania R.  Co.,  87  N.  J.  L.  388, 
94  All.  313. 

New  York.  Bogart  v.  New  York 
Cent.  &  H.  River  R.  Co.,  171  N.  Y. 
App.  Div.  652,  157  N.  Y.  Supp.  420. 

Oklahoma.  Missouri,  K.  &  T.  R. 
Co.  V.  West,  38  Okla.  581,  134  Pac. 
655. 

Texas.     Ft.  Worth  Belt  Ry.  Co. 

V    Perryman.  Tex.  Civ.  App. 

,  158  S.  W.  1181;    Missouri,  K. 

&  T.  R.  Co.  of  Texas  v.  Blalack, 
105  Tex.  296,  147  S.  W.  559. 

41.  Robinson  v.  Baltimore  &  O. 
R.  Co.,  237  U.  S.  84,  59  L.  Ed.  849, 
35  Sup.  Ct.  491.  8  N.  C.  C.  A.  1,  In 
which  Mr.  .Tustice  Hughes,  for  the 
court,    said:      "For    the    iiabllit: 


created'  by  the  Act  is  a  liability 
to  the  'employes'  of  the  carrier, 
and  not  to  others;  and  the  plain- 
tiff was  not  entitled  to  the  bene- 
fit of  the  provision  unless  he  was 
'employed'  by  the  Railroad  Com- 
pany within  the  meaning  of  the 
Act.  It  will  be  observed  that  the 
question  is  not  whether  the  Rail- 
road Company,  by  virtue  of  its 
duty  to  passengers  of  which  it 
cannot  divest  itself  by  any  ar- 
rangement with  a  sleeping  car 
company,  would  not  be  liable  for 
the  negligence  of  a  sleeping  car 
porter  in  matters  involving  the 
passenger's  safety  (Pennsylvania 
Co.  V.  Roy,  102  U.  S.  451).  Nor 
are  we  here  concerned  with  the 
measure  of  the  obligation  of  the 
Railroad  Company,  in  the  absence 
of  special  contract,  to  one  in  the 
plaintiff's  situation  by  reason  of 
the  fact  that  he  was  lawfully  on 
the  train,  although  not  a  passen- 
ger. The  inquiry  is  whether  the 
plaintiff  comes  within  the  statu- 
tory description,  that  is,  whether 
upon  the  facts  disclosed  in  the 
record  it  can  be  said  that  within 


730  Injuries   to   Interstate   Employes.         [§  424 

tractor,  tlierefore,  engaged  in  working  for  a  common 
carrier  bv  railroad  even  in  interstate  commerce  has  no 
remedy  imder  the  statnte/-  A  signal  operator  working 
in  an  interlocking  plant  at  a  grade  crossing  of  two  rail- 
road companies,  was  an  employe  of  both  companies 
within  the  meaning  of  the  federal  act  although  he  was 
employed  and  paid  by  only  one  of  the  two  carriers.^^^ 


§  425.  Employes  on  Ocean-going  Ships  Owned  by 
Common  Carriers  by  Railroads  Not  Included.  The  fed- 
eral act  provides  that  every  common  carrier  by  railroad 
while  engaging  in  interstate  and  foreign  commerce 
shall  be  liable  to  any  person  suffering  injury  while  he 
is  employed  by  such  carrier  in  such  commerce  by  reason 
of  any  "defect  or  insufficiency,  due  to  its  negligence, 
in  its  boats,  wharves  or  other  equipment;  but  the 
word  "boats"  in  the  statute  refers  to  ships  which 
may  be  properly  regarded  as  in  substance  part 
of  a  railroad's  extension  or  equipment  as  under- 
stood and  applied  in  common  practice.*'  The  pur- 
pose of  the  statute  was  to  prescribe  a  rule  appli- 
cable when  the  parties  are  engaging  in  a  business  having 

the  sense  of  the  Act  the  plaintiff  judged    by    its    results.      This    is 
was  an   employe   of  the   Railroad  manifest  from  the  contract  under 
Company,  or  whether  he  is  not  to  review    and    from    the    cooperage 
be   regarded    as    outside    that    d9-  contract;     it  is  also  manifest  from 
scription,  being,  in  truth,   on  the  his  contracts  with  the  other  corn- 
train  simply  in  the  character  of  a  panies    to    whose    industries    the 
servant     of     another     master     by  railroad     company's     tracks     ex- 
whom  he  was  hired,  directed  and  tended.     We  certainly  cannot  say 
paid,  and  at  whose  will  he  was  to  that    he   was    incompetent   to   as- 
be    continued    in    service    or    dis-  sume  such  relation  and  incur  its 
charged."  consequences.    Thus  being  of  opin- 
42.     Chicago,  R.  I.  &  P.  R.  Co.  ion  that  Turner  was  not  an  em- 
V    Bond,  240  U.  S.  449,  60  L.  Ed.  pioyee  of  the  company  but  an  in- 
735,  36   Sup.  Ct.   403,   11  N.  C.  C.  dependent    contractor,    it    is    not 
A.   342,   in  which  the  court  said:  material  to  consider  whether  the 
"Turner  was  something  more  than  ^^^^.^^^^  ^^  ^^^^h  he  was  engaged 
a  mere  shoveler  of  coal   under  a  ^^^^  .^  interstate  commerce." 
superior's  command.     He  was  an  ^^^      ^^^^^^^.^    ^     ^     ^    ^^    ^ 

independent    employer    of    labor,  ^^   93  g    g. 

conscious  of  his  own  power  to  di-         '""^        ^' 

rect  and  willing  to  assume  the  re-  ^^0. 

sponsibility  of  direction  and  to  be  43.     See  sec.  436,  infra. 


§/  426]     Scope,   ^^ALiniri'    and    Effect   of   Act. 


■;u 


direct  and  substantial  conneciion  witli  railroad  oj^era- 
tions  and  not  witli  any  other  kind  of  carriage  recog- 
nized as  separate  and  distinct  from  transportation  on 
land  and  no  mere  adjunct  tliereto."  A  longshoreman, 
therefore,  on  an  ocean-going  steamship,  while  assisting 
in  unloading  a  cargo  of  lumber  therefrom  which  had 
been  trans))orted  from  Galveston,  Tex.,  to  Xew  York, 
had  no  remedy  under  the  federal  act  although  the  ship 
was  owned  and  operated  by  a  common  carrier  by  rail- 
road with  its  princii)al  office  in  the  state  of  Kentucky."^ 

§  426.  Decisions  of  National  Courts  Construing 
Act  Control.  In  construing  the  Federal  Employers'  Lia- 
bility Act,  the  decisions  of  the  national  courts  control 
over  those  of  the  state  courts.*''    For  example,  in  deter- 


44.  Southern  Pac.  Co.  v.  Jen- 
sen, 244  U.  S.  205,  61  L.  Ed.  1086, 
37  Sup.  Ct.  524,  14  N.  C.  C.  A.  597, 
Ann.  Cas.   1917D  1197. 

45.  Southern  Pac.  Co.  v.  Jen- 
sen, supra. 

46.  United  States.  Southern 
R.  Co.  V.  Gray,  241  U.  S.  333,  60 
L.  Ed.  1030,  36  Sup.  Ct.  558;  Sea- 
board Air  Line  Ry.  Co.  v.  Renn, 
241  U.  S.  290,  60  L.  Ed.  1006,  36 
Sup.  Ct.  567;  Atlantic  Coast  Line 
R.  Co.  V.  Burnette,  239  U.  S.  199, 
60  L.  Ed.  226,  36  Sup.  Ct.  75;  Chi- 
cago, R.  I.  &  P.  R.  Co.  V.  Devine, 
239  U.  S.  52,  60  L.  Ed.  140,  36  Sup. 
Ct.  27;  Central  Vermont  Ry.  Co. 
V.  White.  238  U.  S.  507,  59  L.  Ed. 
1433,  35  Sup.  Ct.  865,  9  N.  C.  C. 
A.  265.  Ann.  Cas.   191GB  252. 

Arkansas.  Treadway  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  127  Ark. 
211,  191  S.  W.  930. 

California.  Smithson  v.  Atchi- 
son, T.  &  S.  F.  R.  Co..  174  Cal. 
148;  162  Pac.  Ill:  Southern  Pac. 
Co.  V.  Pillsbury,  170  Cal.  782,  L. 
R.  A.  1916E  916,  151  Pac.  277. 

Florida.     Louisville  &  N.  R.  Co. 

V.   Rhoda,   Fla. .   74    So. 

19. 


Iowa.  Armbruster  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  166  Iowa,  155, 
147  N.  W.  337. 

Kentucky.  Chesapeake  &  0.  R. 
Co.  V.  Kornhoff,  167  Ky.  353,  180 
S.  W.  523. 

Michigan.       Bement     v.     Grand 

Rapids   &   I.    Ry.    Co.,   Mich. 

,    160    N.    W.    424;     Gaines    v. 

Grand  Trunk  R.  Co.  of  Canada. 
193  Mich.  398.  159  N.  W.  542;  Jor- 
genson  v.  Grand  Rapids  &  I.  R. 
Co.,  189  Mich.  537,  155  N.  W.  535; 
Holmberg  v.  Lake  Shore  &  M.  S. 
R.  Co.,  188  Mich.  605,  155  N.  W. 
504. 

Minnesota.  Manning  v.  Chica- 
go Great  Western  R.  Co.,  135 
Minn.  229,  15  N.  C.  C.  591,  160  N. 
W.  787. 

Missouri.     Newkirk     v.     Pryor. 

Mo.  App.  ,  183  S.  W.  682; 

Hawkins  v.  St.  T^ouis  &  S.  P.  R. 
Co.,  189  Mo.  App.  201,  174  S.  W. 
129;  Vaughan  v.  St.  Louis  &  S. 
F.  R.  Co.,  177  Mo.  App.  155,  164 
S.  W.  144;  Rich  v.  St.  Louis  & 
S.  F.  R.  Co.,  166  Mo.  App.  379.  148 
S.  W.  1011. 


732 


Injuries   to   Interstate   Employes.         [§  426 


miuing  when  a  carrier  is  ji'iiilty  of  negligence  under  the 
act;  when  an  employe  assumes  the  risk;  what  proof 
creates  a  dependency  in  death  cases  within  the  mean- 
ing of  the  act;  whether  the  doctrine  of  res  ipsa  loquitur 
applies;  whether  there  is  any  evidence  tending  to  show 
liability  sufficient  for  the  case  to  be  submitted  to  the 
jury;  the  measure  of  damages  and  instructions  thereon, 
are  all  matters  upon  which  the  decisions  of  the  national 
courts  control.*'  Where  the  decisions  of  the  federal 
courts  on  a  question  under  the  act  are  conflicting,  then 
a  state  court  will  follow  those  decisions  of  the  national 
courts  which  appear  to  it  to  rest  on  the  better  reason.''^ 


Montana.     McBain  v.   Northern 

Pac.  Ry.  Co.,  Mont.  ,  160 

Pac.  654. 

Nebraska.  Hadley  v.  Union  Pac. 
R.  Co.,  99  Neb.  349,  156  N.  W.  765. 

New   Jersey.       Rounsaville      v. 

Central  R.  of  New  Jersey,  N. 

J.  L.  ,   101  Atl.   182;     FarreU 

V.  Pennsylvania  R.  Co.,   87  N.   J. 
L.  78,  93  Atl.  682. 

Oklahoma.     Ft.   Smith  &  W.   R. 

Co.  V.  Holcombe,  Okla.  , 

158  Pac.  633. 

Pennsylvania.  Mayers  v.  Un- 
ion R.  Co.,  Pa.  ,  100  Atl. 

967;     Hogarty  v.      Philadelphia  & 
R.  R.  Co.,  245  Pa.  443,  91  Atl.  854. 

Texas.     Ft.   Worth   &   R.    G.   R. 

Co.  V.  Bird,  Tex.  ,  196  S. 

W.  597. 

Vermont.     Castonguay  v.  Grand 

Trunk  Ry.  Co., Vt.  ,  100 

Atl.  908. 

Washington.  Bolch  v.  Chicago, 
M.  &  St.  P.  R  Co.,  90  Wash.  47,  155 
Pac.  422;  Lauer  v.  Northern  Pac. 
R.  Co.,  83  Wash.  465,  145  Pac.  606. 

Wisconsin.  Smiegil  v.  Great 
Northern  R.  Co.,  165  Wis.  57, 
160  N.  W.  1057. 

47.  United  States.  Seaboard 
Air  Line  R.  Co.  v.  Horton,  233 
U.  S.  492,  58  L.  Ed.  1062,  34  Sup. 
Ct.  635,  8  N.  C.  C.  A.  834,  L.  R.  A. 
1915C  1,  Ann.  Cas.  1916B  475;   St. 


Louis,  I.  M.  &  S.  R.  Co.  v.  Mc- 
Whirter,  229  U.  S.  265,  57  L.  Ed. 
1179;  33  Sup.  Ct.  858;  Michigan 
Cent.  R.  Co.  v.  Vreeland,  227  U. 
S.  59,  57  L.  Ed.  417,  33  Sup.  Ct. 
192,  Ann.  Cas.  1914C  176. 

Georgia,  Charleston  &  W.  C.  R. 
Co.  V.  Brown,  13  Ga.  App.  744,  79 
S.  E.  932. 

Missouri.  McAdow  v.  Kansas 
City  Western  R.  Co.,  192  Mo.  App. 
540,  164  S.  W.  188;  Hardwick  v. 
Wabash  R.  Co.,  181  Mo.  App.  156, 
168  S.  W.  328. 

Oregon.  Montgomery  v.  South- 
ern Pac.  Co.,  04  Ore.  597,  47  L. 
R.  A.    (N.  S.)    13,  131  Pac.   507. 

Washington.  Lauer  v.  Northern 
Pac.  R.  Co.,  83  W-ash.  465,  145  Pac. 
606;  Horton  v.  Oregon-Washing- 
ton R.  &  Nav.  Co.,  72  Wash.  503, 
47  L.  R.  A.  (N.  S.)  8,  130  Pac.  897. 

Contra:  on  assumption  of  risk. 
Fish  V.  Chicago,  R.  I.  &  P.  R.  Co., 
263  Mo.  106,  8  N.  C.  C.  A.  538,  Ann. 
Cas.  1916B  147,  172  S.  W.  340;  as 
to  what  negligence  under  the  act, 
Louisville  &  N.  R.  Co.  v.  John- 
son Adm'x,  161  Ky.  824,  171  S.  W 
847. 

48.  Ruck  V.  Chicago,  M.  &  St. 
P.  R.  Co.,  153  Wis.  158,  140  N.  W. 
1074. 


■^  427]      Scope,    Vamdiiv    anp    Kffkct    of   Act. 


733 


**As  ilio  action  is  uiulcr  the  J^Vdcial  Pjinploycrs'  Lia- 
bility Act,  riglits  and  obligations  dci)cn(l  n])on  it  and 
applicable  principles  of  common  law  as  interpreted  and 
aj)])li('d   ill   federal   courts.*"'' 

§  427.  Laws  of  State  Control  as  to  Procedure.  In 
all  actions  nnder  the  lu'deral  J^iii})l()yers'  Liability  Act 
prosecuted  in  the  state  courts,  the  rules  of  practice  and 
procedure  are  governed  by  the  laws  of  the  states  wliere 
the  cases  are  pending.''"     '^^I'hiis,  a   state  law   <iivi]ig  an 


49.  Southern  Ry.  Co.  v.  Gray, 
241,  U.  S.  333,  60  L.  Ed.  1030,  36 
Sup.  Ct.  558. 

50.  United  States.  Chesapeake 
&  O.  R.  Co.  V.  KeUy,  241  U.  S.  485, 
60  L.  Ed.  1117,  36  Sup.  Ct.  630,  1^ 
N.  CCA.  673;  Chesapeake  &  O. 
R.  Co.  V.  De  Atley,  241  U.  S.  310. 
60  L.  Ed  1016,  36  Sup.  Ct.  564; 
Minneapolis  &  St.  L.  R.  Co.  v. 
Bombplis,  241  U.  S.  211,  60  L 
Ed.  961,  36  Sup.  Ct.  595,  L.  R.  A. 
1917A  86,  Ann.  Cas.  1916E  505; 
Kansas  City  Western  R.  Co.  v. 
McAdow,  240  U.  S.  51,  60  L.  Ed. 
520,  36  Sup.  Ct.  252,  11  N.  C.  C. 
A  857;  Atlantic  Coast  Line  R. 
Co.  V.  Burnette,  239  U.  S.  199.  ^^0 
L.  Ed.  226.  36  Sup.  Ct.  75;  Kan- 
sas City  Southern  R.  Co.  v.  Les- 
lie, 238  U.  S.  599.  59  L.  Ed.  1478, 
35  Sup.  Ct.  844;  Central  Vennojit 
R  Co.  V.  White,  238  U.  S.  507,  59 
L.  Ed.  1433.  35  Sup.  Ct.  865.  9  N. 
C  C.  A.  265,  Ann.  Cas.  191GB  .252: 
Norfolk  Southern  R.  Co.  v.  Fer^- 
bee,  238  U.  S.  269,  59  L.  Ed.  I.^.OS, 
35  Sup.  Ct.  781;  Chicago  &  N.  W. 
R.  Co.  V.  Gray.  237  U.  S.  399,  59 
L.  Ed.  1018.  35  Sup.  Ct.  620,  9  N. 
C  C  A.  452;  North  Carolina  R 
Co.  V.  Zachary,  232  U.  S.  248,  58 
L.  Ed.  591,  34  Sup.  Ct.  305.  9  N. 
C  C  A.  109,  Ann.  Cas.  1914C  159: 
Brinkmeior  v.  Missouri  Pac.  R. 
Co.,  224  U.  S.  268,  56  L.  Ed.  758. 
32  Sup.  Ct.  412. 


Alabama.  Alabama  Great  South, 
ern  R.  Co.  v.  Rkotzy,  196  Ala.  25, 
71  So.  335. 

Florida.     Louisville  &  N.  R.  Co. 

V.   Rhoda, Fla.  ,   71    S<j 

19. 

Georgia.  Bowers  v.  Southern 
Ry.  Co.,  10  Ga.  App.  307,  73  S  E. 
077. 

Iowa.  McCullough  v.  Chicago. 
R.  I.  &  P.  R.  Co.,  160  Iowa  52i,  47 
L.  R.  A.   (N.  S.)   23,  142  N.  W.  67. 

Kentucky.  Lexington  &  E.  R. 
Co.  V.  Smith's  Adm'r,  172  Ky,  117, 
188  S.  W.  1091;  Louisville  &  N. 
R.  Co.  V.  Holloway's  Adm'r,  163 
Ky.  125,  173  S.  W.  343;  Louis- 
ville &  N.  R.  Co.  V.  Johnson's 
Adm'x,  161  Ky.  824,  171  S.  W. 
847;  Chesapeake  &  0.  R.  Co.  v. 
Kelly's  Adm'r,  161  Ky.  655,  171  S. 
W.  185. 

Minnesota.  Manning  v.  Chi- 
cago Great  Western  R.  Co.,  135 
Minn.  229,  15  N.  C  C.  A.  591,  160 
N.  W.  787;  Marshall  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  133  Minn.  460, 
157  N.  W.  638;  Bombolis  v.  Min- 
neapolis &  St.  L.  R.  Co.,  128  Minn. 
112,  150  N.  W.  385. 

Missouri.  Sells  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  266  Mo.  155,  ISl 
S.  W.  106:  Mcintosh  v.  St.  Louis 
&  S.  F.  R.  Co..  182  ]\Io.  App.  288. 
168  S.  W.  821;  McAdow  v.  Kan- 
sas City  Western  R.  Co.,  192  Mo. 
App.  540.  164  S.  W.  188. 


734  Injuries   to   Interstate   Employes.         [^  427 

attorney  a  lien  upon  the  cause  of  action  of  his  client  is 
applicable  to  actions  prosecuted  in  the  state  courts  un- 
der the  federal  act.^^''  Questions  as  to  whether  amend- 
ments shall  be  permitted  to  petitions  or  answers;  when 
motions  to  elect  should  be  sustained  or  overruled;  the 
rules  of  evidence;  variances;  excessiveness  of  verdicts 
and  similar  questions  of  practice  and  procedure,  are 
matters  to  be  determined  solely  by  the  state  courts  in 
accordance  with  the  statutes  of  the  state  and  their  rules 
applying  the  same/^ 


New  York.  Tyudall  v.  New 
York  Cent.  &  H.  River  R.  Co.,  21.3 
N.  Y.  691,  107  N.  E.  577. 

North  Carolina.  Renn  v.  Sea- 
hoard  Air  Line  R.  Co.,  170  N.  C. 
128,  86  S.  E.  964;  Fleming  v.  Nor- 
folk Southern  R.  Co.,  160  N.  C. 
196,   76   S.   E.   212. 

Oklahoma.  St.  Louis  &  S.  F.  R. 
Co.  V.  Brown,  45  Okla.  143,  144 
Pac.  1075. 

South  Carolina.  Mulligan  v.  At- 
lantic Coast  Line  R.  Co.,  104  S. 
C.  173,  88  S.  E.  445;  Howell  v.  At- 
lantic Coast  Line  R.  Co.,  99  S.  C. 
417,  83  S.  E.  639;  Bennett  v. 
Southern  Ry.  Carolina  Division, 
98  S.  C.  42,  79  S.  E.  710. 

Vermont.  White's  Adm'x  v. 
Central  V.  Ry.  Co.,  87  Vt.  330,  89 
Atl.  618. 

Virginia.  Going's  Adm'x  v.  Nor- 
folk &  W.  R.  Co.,  119  Va.  543,  89 
S.  E.  914;  Chesapeake  &  0.  R. 
Co.  V.  Meadows,  119  Va.  33,  13  N. 
C.  C.  A.  376,  89  S.  E.  244. 

Washington.  Murker  v.  North- 
ern P.  Ry.  Co.,  95  Wash.  280,  163 
Pac.  756. 

Wisconsin.  Sweet  v.  Chicago  & 
N.  W.  R.  Co.,  157  Wis.  400,  147  N. 
W.  1054. 

The  rule  of  the  federal  courts 
as  to  the  right  of  a  judge  to  sug- 
gest what  the  verdict  should  he 
does  not  apply  to  a  case  tried  in 


the  state  court  even  where  the 
cause  of  action  is  given  under  a 
federal  act.  Horton  v.  Seaboard 
Air  Line  R.  Co.,  169  N.  C.  108,  85 
S.  E.  218. 

50a.     Dickinson  v.  Stiles,  246  U. 

S.   ,   62   L.   Ed.   ,   38   Sup. 

Ct.  415,  affirming Minn.  , 

163   N.  W.   791. 

51.  United  States.  Illinois  Cent. 
R.  Co.  V.  Skaggs,  240  U.  S.  66,  60 
L.  Ed.  528,  36  Sup.  Ct.  249;  Wa- 
bash R.  Co.  V.  Hayes,  234  U.  S.  86, 
58  L.  Ed.  1226,  34  Sup.  Ct.  729,  6 
N.  C.  C.  A.  224;  Southern  Ry.— 
Carolina  Division  v.  Bennett,  233 
U.  S.  80,  58  L.  Ed.  860.  34  Sup. 
Ct.  566,  10  N.  C.  C.  A.  853;  Gib- 
son V.  Bellingham  &  N.  Ry.  Co., 
213  Fed.  488;  Bankson  v.  Illinois 
Cent.  R.  Co.,  196  Fed.  171. 

Arkansas.  Kansas  City  South- 
ern R.  Co.  V.  Leslie,  112  Ark.  305, 
167  S.  W.  83;  Midland  Valley  R. 
Co.  V.  Ennis,  109  Ark.  206,  159  S. 
W.  214. 

Georgia.  Atkinson  v.  Bullard, 
14  Ga.  App.  69,  80  S.  E.  220. 

Iowa.  Armbruster  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  166  Iowa  155, 
147  N.  W.  337. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Moore,  156  Ky.  708,  161  S. 
W.  1129;  Louisville  &  N.  R.  Co. 
V.  .Stewart's  Adm'x,  156  Ky.  550, 
161  S.  W.  557;    Louisville  &  N.  R. 


^  427]     Scope,    Validity    and   Effect   of  Act. 


735 


But  a  substantive  ri<^ht  or  defense  arising  under  the 
federal  act  cannot  be  lessened  or  destroyed  by  a  rule  of 
practice  or  procedure  of  the  state  courts."  For  ex- 
ample, under  tlie  decisions  of  the  national  courts  the 
burden  of  proving  contributory  negligence  in  personal 
injury  actions  by  an  employe  against  a  master,  is  upon 
the  defendant.^"'  Such  a  rule  is  a  matter  of  substance 
and  not  of  procedure  and  the  plaintiff,  under  the  federal 
act,  is  entitled  to  have  it  enforced  even  in  actions  pro- 
secuted in  the  courts  of  a  state  where  the  burden,  in 
personal  injury  actions,  of  proving  himself  free  from 
contributory  negligence  is  upon  tiie  plaintiff  and  not 
upon  the  defendant.^* 


Co.  V.  Strange's  Ailin'x,  156  Ky. 
4H9.  nil  S.  W.  239. 

Minnesota.  Winters  v.  Minne- 
apolis &  St.  L.  R.  Co.,  126  Minn. 
260,  148  N.  W.   106. 

New  Hampshire.  Tinkham  v. 
Boston  &  M.  R.  R.,  77  N.  H.  Ill, 
88  Atl.  709. 

North  Carolina.  Burnett  v.  At- 
lantic Coast  Line  R.  Co.,  163  N. 
C.  186,  79  S.  E.  414. 

Vermont.  Bouchard  v.  Central 
Vermont  R.  Co.,  87  Vt.  399,  L.  R. 
A.   1915C   33,   89   Atl.   475. 

Wisconsin.  Sweet  v.  Chicago  & 
N.  W.  R.  Co.,  157  Wis.  400,  147  N. 
W.  1054. 

State  statutes  requiring  notice 
of  injury  not  applicable  under 
Federal  Act.  El  Paso  &  N.  E. 
R.  Co.  V.  Gutierrez,  215  U.  S.  87, 
54  L.  Ed.   106,  30   Sup.  Ct.   21. 

52.  Norfolk  Southern  R.  Co. 
V.  Ferebee,  238  U.  S.  269,  59  L. 
Ed.  1303,  35  Sup.  Ct.  781. 

53.  Seaboard  Air  Line  Ry.  Co. 
V.  Moore,  228  U.  S.  433,  57  L. 
Ed.  907,  33  Sup.  Ct.  580;  Wash- 
ington &  G.  R.  Co.  V.  Harmon,  147 
U.  S.  571.  37  L.  Ed.  284.  13  Sup. 
Ct.  557:  Inland  &  S.  C.  Co.  v. 
Tolson,  139  U.  S.  551.  35  L.  Ed. 
270,    11    Sup.    Ct.    653;     Hough    v. 


Te.xas  &  P.  R.  Co.,  100  U.  S.  213, 
25  L.  Ed.  612;  Heminway  v.  Illi- 
nois Cent.  R.  Co.,  52  C.  C.  A.  477, 
114   Fed.   843. 

54.  Central  Vermont  R.  Co.  v. 
White,  238  U.  S.  507,  59  L.  Ed. 
1433,  35  Sup.  Ct.  865.  9  N.  C.  C. 
A.  265,  Ann.  Cas.  1916B  252,  in 
which  the  court  said:  "There 
can,  of  course,  be  no  doubt  of  the 
general  principle  that  matters  re- 
specting the  remedy — such  as  the 
form  of  the  action,  sufficiency  of 
the  pleadings,  rules  of  evidence, 
and  the  statute  of  limitations — de- 
pend upon  the  law  of  the  place 
where  the  suit  is  brought.  Mc- 
Niel  V.  Holbrook,  12  Pet.  89.  But 
matters  of  substance  and  proced- 
ure must  not  be  confounded  be- 
cause they  happen  to  have  the 
same  name.  For  example,  the 
time  within  which  a  suit  is  to 
be  brought  Is  treated  as  pertain- 
ing to  the  remedy.  But  this  is 
not  so  if,  by  the  statute  giving  the 
cause  of  action,  the  lapse  of  time 
not  only  bars  the  remedy  but  de- 
stroys the  liability.  Phillips  v. 
Grand  Trunk  Ry..  2.36  U.  S.  662: 
Boyd  V.  Clark,  8  Fed.  Rep.  849; 
Hollowel  V.  Horwick,  14  Massa- 
chusetts, 188;    Cooper  v.  Lyons,  77 


I 


736  Inji^eies   to   Interstate   Employes.         [§  428 

§  428.  Fellow  Servant  Rule  Abolished  as  to  all 
Interstate  Employes.  The  common  law  rule  which  ab- 
solved the  master  from  liability  for  injuries  to  a  servant 
caused  by  the  negligence  of  a  fellow  servant,  was  abol- 
ished as  to  all  interstate  employes  of  carriers  by  the 
adoption  of  the  Federal  Employers'  Liability  Act;  for 
Section  1  of  the  Act  specifically  provides  that  the  car- 
rier shall  be  liable  for  any  injury  or  death   resulting 


Tennessee,  597  (2);    Newcombe  v. 
Steamboat      Co.,      3      Iowa       (G. 
Greene),    295.     In    that    class    of 
cases  the  law  of  the  jurisdiction, 
creating  the  cause  of  action  and 
fixing   the   time   within    which   it 
must   be   asserted,    would    control 
even  where  the  suit  was  brought 
in    the    courts    of    a    state    which 
gave  a  longer  period  within  which 
to  sue.   So,  too,  as  to  the  burcjen 
of  proof.     As  long  as  the  question 
involves    a    mere    matter    of    pro- 
cedure as  to  the   time  when  and 
the     order     in     which     evidence 
should    be     submitted    the     state 
court    can,    in    those   and    similar 
instances,   follow   their  own   prac- 
tice   even    in    the    trial    of    suits 
arising    under    the    Federal  1  aw. 
But  it  is  a  misnomer  to  say  that 
the  question  as  to  the  burden  of 
proof    as    to    contributory    negli- 
gence  is   a  mere  matter   of  state 
procedure.   For,   in  Vermont,   and 
in    a    few    other    States,    proof    of 
plaintiff's    freedom   from   fault   is 
a   part  of   the   very   substance   of 
his  case.     He  must  not  only  sat- 
isfy the  jury    (1)   that  he  was  in- 
jured   by    the    negligence    of    the 
defendant,  but  he  must  go  furthe;- 
and,   as   a   condition    of   his   rigl.t 
to    recover,    must   also    show    (2) 
that  he  was  not  guilty  of  contribu- 
tory negligence.     In  those  States 
the  plaintiff  is  as  much  under  the 
necessity  of  proving  one  of  these 


facts  as  the  other;  and  as  to  nei- 
ther can  it  be  said  that  the  bur- 
den is  imposed  by  a  rule  of  pro- 
cedure, since  it  arises  out  of  the 
gereral  obligation  imposed  upon 
every  plaintiff,  to  establish  all  of 
the  facts  necessary  to  make  out 
his  cause  of  action.  But  the 
United  States  courts  have  uni- 
formly that  as  a  matter  of  gen- 
eral law  the  burden  of  proving 
contributory  negligence  is  on  the 
defendant.  The  Federal  courts 
have  enforced  that  principle  even 
in  trials  in  States  which  hold  that 
the  burden  is  on  the  plaintiff. 
Railroad  v.  Gladman,  15  Wall. 
401  (1),  407-408;  Hough  v.  Rail- 
way Co.,  100  U.  S.  225:  Inland 
etc.  Co.  V.  Tolson,  139  U.  S.  551 
(4),  557;  Washington,  etc.,  R.  R. 
V  Harmon,  147  U.  S.  581;  Hem- 
ingway V.  111.  Cent.  R.  R.,  114 
Fed.  Rep.  843.  Congress  in  pass- 
ing the  Federal  Employers'  Lia- 
bility Act  evidently  intended  that 
the  Federal  statute  should  be  con- 
strued in  the  light  of  these  and 
other  decisions  of  he  Federal 
courts.  Such  construction  of  the 
statute  was,  in  effect,  approved  in 
Sea  Board  Air  Line  v.  Moore,  228 
U.  S.  434.  There  was,  therefore, 
no  error  in  failing  to  enforce 
what  the  defendant  calls  the 
Vermont  rule  of  procedure  as  co 
the  burden  of  proof." 


^  428 1     Scope,   ^'AJ.Il'll^    and    Mki-k(  t    of    Act.  737 

in  whole  or  in  part  from  the  iie^-ligence  of  iuiy  of  the 
officers,  -a,ii:eTits  or  cTn])1oyes  of  siicli  carrier."''' 


55.  United  States.  Chesapeake 
&  0.  R.  Co.  V.  De  Alley,  241  U.  S. 
310,  CO  L.  Ed.  1016,  36  Sup.  Ct. 
564;  Central  Vermont  R.  Co.  v. 
White,  238  U.  S.  507,  59  L.  Ed. 
1433,  35  Sup.  Ct.  865.  9  N.  C.  C.  A. 
265,  Ann.  Cas.  1916B  252;  Sea- 
board Air  Line  R.  Co.  v.  Horton, 
233  U.  S.  492,  58  L.  Ed.  1062,  34 
Sup.  Ct.  635,  8  N.  C.  C.  834,  L.  R. 
A.  1915C  1,  Ann.  Cas.  1915B  475; 
San  Pedro,  L.  A.  &  S.  L.  R.  Co. 
V.  Davide,  127  C.  C.  A.  454,  210 
Fed.  870;  Illinois  Cent.  R.  Co.  v. 
Porter,  125  C.  C.  A.  55,  207  Fed. 
311;  Northern  Pac.  R.  Co.  v. 
Maerkl,  117  C.  C.  A.  237,  198  Fed. 
1;  Zikos  V.  Oregon  R.  &  Nav.  Co.. 
179  Fed.  893. 

Georgia.  Bowers  v.  Southern 
R.  Co.,  10  Ga.  App.  367,  73  So.  677. 

Illinois.  Devine  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  266  111.  248,  Ann. 
Cas.   1916B   481,   107   N.   E.   595. 

Indiana.  Pittsburgh.  C,  C.  & 
St.  L.  R.  Co.  V.  Farmers'  Trust  & 
Savings  Co.,  183  Ind.  287.  108  N. 
E.  108;  Southern  R.  Co.  v.  How- 
erton,  182  Ind.  208.  105  N.  E. 
1025,  106   N.   E.   369. 

Kansas.     Westling   v.    Atchison. 

T.  &  S.  R.  Ry.  Co..  Kan.  — , 

165  Pac.  669. 

Louisiana.  Lanis  v.  Illinois 
Cent.  R.  Co.,  140  La.  1.  72  So. 
788. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Branson,  128  :\Id.  678.  98 
Atl.    225. 

Mississippi.  Elliott  v.  Illinois 
Cent.  R.  Co.,  Ill  Miss.  426.  71  So. 
741. 


Missouri.  Koukouris  v.  Union 
I'ac.  K.  Co..  193  Mo.  App.  495,  186 
S.  W.  545. 

New  Hampshire.  Tapore  v.  Bos- 
ton &  M.   R.  R.,  N.  H.  , 

100  Atl.  153:  Caverhill  v.  Boston 
&  M.  R.  R.,   77   N.  H.   330,  91  Atl. 

ruT. 

New  Jersey.  Crybowski  v.  Erie 
R.  Co..  88  N.   .1.   L.   1,  95   Atl.  764. 

North  Dakota.  Manson  v.  North- 
ern R.  Co..  31  N.  D.  643,  155  N. 
W.   32. 

Texas.      Carter   v.    Kansas    City 

S.    Ry.    Co..   Tex.    Civ.    App. 

,  155  S.  W.  638. 

Vermont.  Robie  v.  Boston  &  M. 
R.  R.. Vt.  ,  100  Atl.  925. 

West  Virginia.  Culp  v.  Virgini- 
an Ry.  Co.,  W.  Va.  ,  92 

S.  E.  236;  Easter  v.  Virginian  R. 
Co.,  76  W.  Va.  383.  11  N.  C.  C  A. 
101,  86  S.  E.  37. 

Wisconsin.  Callahan  v.  Chicago 
&  N.  W.  R.  Co.,  161  Wis.  288,  154 
N.  W.  449;  Graber  v.  Duluth.  S. 
S.  &  A.  R.  Co.,  159  Wis.  414,  150 
N.  W.  489. 

A  risk  which  arose  out  of  the 
negligence  of  a  fellow  servant  was 
not  assumed  under  the  Federal 
Act.     Fried  v.  New  York.  N.  H.  & 

H.  R.  Co..  App.  Div.  .  170 

N.  Y.   Supp.  697. 

The  right  of  action  of  a  loco- 
motive fireman  upon  an  engine 
drawing  a  train  engaged  in  inter- 
state commerce  is  governed  by  the 
federal  law  and  the  fellow  servant 
rule    does    not    apply.      Royer    v. 

Pennsylvania  R.  Co.. Pa.  — . 

103    Atl.   276. 


1    CV>titn>l    Carriers    47 


Sec. 

429. 

Sec. 

430. 

Sec. 

431. 

Sec. 

432. 

Sec. 

433. 

CHAPTER  XXII. 

Common  Garrieks  Subject  to  the  Liability  Act. 

General    Rule    as    to    When    Railroad    Companies    are    En- 
gaged in  Interstate  and  Foreign  Commerce. 
Railroads  Within  the  Act  Defined — Spur  Tracks. 
Railroad  Must  be  a  Common  Carrier — Tap  Lines  and  Log- 
ging Roads. 
Carriers    Owning    and    Operating    Lines    Wholly    Within    a 

Single  State  Subject  to  Federal  Act,  When. 
Railroad   Carriers   Engaged   in   Foreign    Commerce    Subject 
to  the  Statute. 

Sec.  434.     Lessor   of  Railroad   Engaged   in   Interstate   Commerce   Lia- 
ble, When. 

Sec.  435.     Interurban    Electric   Railroads    Included    Within    the   Act. 

Sec.  436.     Railroads  Carrying  Passengers  and  no  Freight. 

Sec.  437.     Ships  or  Vessels  not  a  Part  of  a  Railroad  System. 

Sec.  438.     Street  Railroads  not  Within  the  Terms  of  the  National  Act. 

Sec.  439.     Receivers    of    Railroad    Corporations    Included    Within    the 
Act. 

Sec.  440.     Sleeping  Car  Companies  not  Common  Carriers  by  Railroad. 

Sec.  441.     Express  Companies  not  Common  Carriers  by  Railroad  Un- 
der Federal  Act. 

Sec.  442.     All  Carriers  by  Railroad  and  all  their  Employes  Within  Ter- 
ritories Included. 

Sec.  443.     Beginning    and    Ending    of    Interstate    Character    of    Ship- 
ments. 

Sec.  444.     Hauling  Empty  Cars  or  Company  Property  over  State  Line. 

Sec.  445.     Transportation   from   Point   to   Point  in   One   State   Passing 
Through  Another   State  in   Transit. 

Sec.  446.     When   Reshipment   from   Point   of   Delivery   Changes    Inter- 
state Character  of  TraflSc. 

Sec.  447.     When  Reshipment  from  Point  of  Delivery  Does  Not  Change 
Interstate  Character  of  Traffic. 

Sec.  448.     Proof  that  Injured  Servant  is  Employed  in  Interstate  Com- 
merce Sufficient  to  show  that  the  Railroad  is  so  Engaged. 

§  429.    General  Rule  as  to  When  Railroad  Compa- 
nies Are  Engaged  in  Interstate  and  Foreign  Commerce. 

If  a  common  carrier  by  railroad  transports  passengers, 
freight,  express,  baggage  or  other  merchandise  from 
one  state  in  the  United  States  to  another,  or  from  a 
state  or  territory  to  a  territory  or  rice  versa,  or  from 
the  District  of  Columbia  to  a  state  or  territory  or  vice 
versa,  or  from  a  state  or  territory  to  a  foreign  nation 

(738) 


•§  430 J  Carriers  Under  Liability  Apt.  739 

or  vice  versa,  the  carrier  is  ongagod  in  intorstatp  com- 
merce or  foreign  commerce  within  llie  meaning  of  tlie 
Federal  Em})loyers'  Liability  Act.  Carriers  engag<H3 
in  foreign  commerce  while  within  the  boundary  of  tlie 
United  Slates  are  included  in  the  act  as  well  as  carriers 
engag<'d  in  intei'»tate  connnerce. 

§  430.  Railroads  Within  the  Act  Defined— Spur 
Tracks.  The  Federal  Employers'  Liability  Act  is  con- 
fined solely  to  common  carriers  engaged  in  interstate 
commerce  by  railroad.^  The  Hepburn  amendment  of 
1906  to  the  Interstate  Commerce  Act^  prescribes  that  a 
railroad,  as  used  in  that  statute,  shall  include  "all 
bridges  and  feiTies  used  or  operated  in  connection 
with  any  railroad,  and  also  all  the  road  in  use  by  any 
corporation  operating  a  railroad,  whether  owned  or 
operated  under  a  contract,  agreement,  or  lease,  and 
shall  also  include  all  switches,  spurs,  tracks,  and  termi- 
nal facilities  of  every  kind  used  or  necessary  in  the 
transportation  or  delivery  of  any  of  said  property." 
It  would  seem  that  this  definition  following  the  applica- 
tion of  analogous  principles  by  the  courts  in  other 
cases,  would  apply  in  construing  what  is  or  is  not  a 
railroad  within  the  meaning  of  the  liability  act  though 
the  question  has  not  apparently  been  directly  passed 
upon.  The  Federal  Circuit  Court  of  Appeals  for  the 
sixth  circuit,  in  1904,  construing  the  Safety  Appliance 
Act  decided  that  the  Interstate  Commerce  Act  and  the 
Saftey  Appliance  Act  were  in  j^ari  materia  so  that  the 
definition  of  a  railroad  given  in  the  former  controlled 
in  construing  the  latter.^    After  the  passage  of  the  Hep- 

1.    United  States.    Erie  R.  Co.  v.  New  Jersey.     Higgins  v.  Erie  R. 

Jacobus.  137  C.  C.  A.  151,  221  Fed.  co.,  89  N.  J.  L.  629,  99  Atl.  98. 

335;    Shade  v.  Northern  Pac.  Ry.  ^exas.     Ft.  W^orth  Belt  Ry.  Co. 
Co.,    206    Fed.   353;    The   Pawnee, 


V.  Perryman,  Tex.  Civ.  App. 

,  158  S.  W.  1181. 

2.     Act   June  20,   1916,   c.    3591. 


205  Fed.  333. 

Connecticut.  Kennerson  v. 
Thames  Towboat  Co.,  89  Conn.  367. 
L.  R.  A.  1916A  436,  94  Atl.  372.  ^^  ^^^'-  ^^■*- 

New  Hampshire.    Cantin  v.  Glen  3.    United   States   v.   Geddes,   65 

Junct.    Transfer   Co..    N.    H.   ,       C.  C.  A.  320,  131  Fed.  452. 

96  Atl.  303. 


740  Injurtks  to  Interstate  Employes.         [§  430 

burn  Amendment,  which  defined  a  railroad  witliin  the 
meaning-  of  the  Interstate  Commerce  Act  as  (]uoted 
lierein,  it  was  held  in  another  case  that  this  definition 
of  a  railroad  governed  in  construing  what  was  a  rail- 
road nnder  the  Safety  Appliance  Act  and  the  court 
decided  that  a  private  switch  leading  to  a  mill  used  by 
a  railroad  company  in  transporting  cars  in  interstate 
commerce  to  and  from  tlie  mill  as  they  were  consigned, 
with  the  railroad's  own  engines  and  cars  constituted 
a  "railroad"  within  the  meaning  of  the  Safety  Appli- 
ance Act/  The  national  Supreme  Court,  in  a  subse- 
quent case,  held  that  a  common  carrier  by  railroad  was 
liable  under  the  Employers'  Liability  Act  for  the  death 
of  a  brakeman  who  was  killed  while  engaged  in  switch- 
ing a  car  on  a  private  switch  running  through  the 
premises  of  an  industrial  establishment  and  which  con- 
nected with  the  main  line  of  the  defendant.^ 

§  431.  Railroad  Must  Be  a  Common  Carrier— Tap 
Lines  and  Logging  Roads.  In  order  to  recover  under 
the  national  act,  the  injured  employe  must  not  only 
show  that  the  defendant  owned  or  operated  a  railroad, 
but  he  must  further  show  that  such  railroad  is  operated 
as  a  common  earner.*'     A  common  carrier  is  one  who 

4.  Gray  v.  Louisville  &  N.  R.  A  section  foreman  riding  on  a 
Co.,  197  Fed.  874.  hand  car   over   an   interstate  line 

5.  Kanawha  &  M.  R.  Co.  v.  to  the  scene  of  a  w^ash-out  was 
Kerse,  239  U.  S.  576,  60  L.  Ed.  subject  to  the  federal  act  although 
448,  36  Sup.  Ct.  174.  it  later  developed  that  the  wash- 

A    laborer    on    a    private    spur  out  was   on  a  private   connecting 

track  not  owned  by  the  railroad  spur  .track  owned   by   a   different 

company    but    over    which    it    de-  corporation   and   not   on   the   line 

livered   interstate  shipments,  was  of   his   employer.     Atlantic   C.   L. 

held  not  to  be  engaged  in  inter-  R.  Co.  v.  Tomlinson,  —  Ga.  App. 

state  commerce.     Liberti  v.  Statin       ,  94  S.  B.  909. 

Island    Ry.    Co.,   N.   Y.    App.  6.    Pedersen   v.    Delaware,   L.    & 

Div.    ,    197    N.    Y.    Supp.    478.  W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed. 

But  this  decision  is  erroneous  for  1125,  33  Sup.  Ct.  648,  3  N.  C.  C.  A. 

Liberti   was   an   employee   of   the  779,  Ann.  Cas.  1914C,  153;   In  re 

rairoad     company     repairing     the  Second       Employers'       Liability 

spur   track.     The   mere  fact  that  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 

it  was  owned  by  another  did  not  32  Sup.  Ct.  169,  1  N.  C.  C.  A.  875, 

affect   his    interstate    status.  38   L.   R.   A.    (N.   S.)    44;    Bay   v. 


§  431]  Carriers  Under  Liabii.ity  Af  t.  741 

undertakes  to  transport  for  hire  from  one  jdace  to  an- 
other, passengers  or  goods  of  sucli  as  clioose  to  em- 
ploy liim.''  A  company  owned  a  ti'act  of  ti!nl)er  land 
which  it  was  engaged  in  logging  and  al^^o  owned  a  rail- 
road on  which  it  transported  its  logs  from  the  woods 
to  Puget  Sound,  eighty  per  cent,  of  the  output  being 
shipped  to  other  states  or  countries.  The  company's 
articles  of  incorporation  authorized  it  to  do  business  as 
a  common  carrier;  but  in  fact  the  services  rendered  on 
its  road  had  all  been  private  and  only  for  the  purpose 
of  carrying  the  logs  to  the  Sound.  The  court  held  that 
the  transportation  of  logs  did  not  constitute  interstate 
commerce  within  the  rule  that  a  commodity  is  not  mov- 
ing in  interstate  commerce  until  it  has  entered  on  its 
final  passage  to  another  state  or  foreign  country,  and, 
hence,  the  company  was  not  liable  under  the  Federal 
Employers'  Liability  Act.** 

In  the  Tap  Line  Cases,  decided  by  the  United 
States  Supreme  Court,-'  the  question  presented  was 
whether  certain  logging  railroads  in  Louisiana  were 
common  carriers  by  railroad  or  were  mere  "plant  facil- 
ities" as  tiiat  doctrine  has  been  expounded  by  the  Inter- 
state Commerce  Commission  and  the  courts.    The  proof 

MerriU   &   Ring   Lumber   Co.,    211  tural  Iron  Works  v.  Hurlbut,  158 

Fed.  717;   Shade  v.  Northern  Pac.  N.  Y.  34,  70  Am.  St.  Rep.  432;   52 

Ry.  Co.,  206  Fed.  353;  The  Pawnee,  N.  E.  665;   Ft.  Worth  Belt  Ry.  Co. 

205  Fed.  333;    Union  Stock  Yards  v.  Perryman,  Tex.  Civ.  App. 

Co.  of  Omaha  v.  United  States,  94  ,  158  S.  W.  1181. 

C.  C.  A.  626,  169  Fed.  404;  United  8.  Bay  v.  Merrill  &  Ring  Log- 
States  V.  Union  Stock  Yards  Co.  ging  Co.,  243  U.  S.  40,  61  L.  Ed. 
of  Omaha,  161  Fed.  919;  Ft.  Worth  580,    37    Sup.    Ct.   376;    IMcCluskey 

Belt  Ry.    Co.    v.    Perryman,    v.  Marysville  &  N.  R.  Co.,  243  U. 

Tex.    Civ.    App.    ,    158    S.    W.  S.  36,  61  L.  Ed.   578,  37   Sup.  Ct. 

1181;  Chicago,  R.  I.  &  G.  Ry.  Co.  374;  Coe  v.  Errol,  116  U.  S.  517,  29 

V.  Trout.  Tex.  Civ.  App.  ,  L.  Ed.  715,  6  Sup.  Ct.  475;  Daniel 

152   S.  W.  1137.  Ball  Case,  10  Wall.  (U.  S.)  557,  19 

7.    Nordgard  v.  Marysville  &  N.  L.    Ed.    999;    Nordgard   v.    IMarys- 

Ry.  Co.,  211  Fed.  721,  aff'd  in  134  ville  &  N.   Ry.  Co.,  211  Fed.  721: 

C.  C.  A.  415,  218  Fed.  737,  Judge,  Bay  v.  Merrill  &  Ring  Lumber  Co., 

Ross  dissenting  on  the  proposition  211  Fed.  717. 

as  to  whether  the  railroad  was  a  9.    Atchison,  T.  &  S.  F.  R.  Co.  v. 

common     carrier;      2     Words     &  Victoria,  F.  &  W.  R.  Co.,  234  U.  S. 

Phrases,    1312;    Jackson    Architec-  1.  58  L.  Ed.  1185.  34  Sup.  Ct.  741. 


742  Injuries  to  Interstate  Employes.         [^  431 

was  different  from  that  in  the  Bay  case,  supra,  as  the 
evidence  disclosed  that  these  roads  held  themselves  out 
as  common  carriers  to  some  extent  though  most  of  the 
trailic  consisted  of  the  logs  and  timbers  belonging  to  the 
owners  of  the  roads.  The  Supreme  Court  held  that  they 
were  common  carriers  by  railroad  and  that  the  extent 
to  M'liich  a  railroad  is  in  fact  used  by  the  public  does 
not  determine  whether  it  is  a  common  carrier,  but  the 
right  of  the  public  to  demand  services  of  it  is  the  cri- 
terion to  determine  whether  the  roads  were  plant  facil- 
ities or  common  carriers.  An  order  of  the  Interstate 
Commerce  Commission  prohibiting  these  tap  lines  from 
sharing  in  rates  on  commodities  shipped  over  them  on 
the  ground  that  they  were  not  common  carriers,  was 
set  aside. 

§  432.  Carriers  Owning  and  Operating  Lines 
Wholly  Within  a  Single  State  Subject  to  Federal  Act, 
When.  Common  carriers  by  railroad  whose  lines  are 
wholly  within  the  limits  of  a  single  state  and  who  are 
engaged  exclusively  in  intrastate  commerce,  are  not  sub- 
ject to  the  Federal  Employers'  Liability  Act,  and  hence 
the  employes  of  such  carriers,  if  injured,  or  if  killed, 
their  beneficiaries,  must  look  to  the  law  of  a  state  for  a 
remedy;  for  no  power  has  been  delegated  to  Congress 
to  regulate  the  exclusively  internal  commerce  of  a 
state,  this  is,  such  traffic  as  is  carried  on  by  carriers 
entirely  within  the  limits  of  a  state  and  which  does  not 
affect  or  extend  to  other  states.^*' 

10.  United  States.  Michigan  18;  Chicago,  I.  &  L.  R.  Co.  v. 
Cent.  R.  Co.  v.  Michigan  R.  R.  Haclcett,  228  U.  S.  559,  57  L.  Ed. 
Commission,  236  U.  S.  615,  59  L.  966,  33  Sup.  Ct.  581;  Missouri  Pac. 
Ed.  750,  35  Sup.  Ct.  422;  R.  Co.  v.  Castle,  224  U.  S.  541,  56 
Atlantic  Coast  Line  R.  Co.  v.  L.  Ed.  875,  32  Sup.  Ct.  606;  South- 
Georgia,  234  U.  S.  280,  58  L.  Ed.  ern  R.  Co.  v.  Reid,  222  U.  S.  424, 
1312,  34  Sup.  Ct.  829;  Grand  56  L.  Ed.  257,  32  Sup.  Ct.  140; 
Trunk  R.  Co.  v.  Michigan  R.  R.  Asbell  v.  State,  209  U.  S.  251,  52 
Commission,  231  U.  S.  457,  58  L.  L.  Ed.  778,  28  Sup.  Ct.  485,  14  Ann. 
Ed.  310,  34  Sup.  Ct.  152;  Simpson  Cas.  1101;  Howard  v.  Illinois  Cent. 
V.  Shephard,  230  U.  S.  352,  57  L.  R.  Co.,  207  U.  S.  463,  52  L.  Ed.  297, 
E(}.  1511,  33  Sup.  Ct.  729,  48  L.  R.  28  Sup.  Ct.  141;  Gulf,  C.  &  S.  F. 
A.    (N.  S.)    1151,  Ann.  Cas.  1916A  R.  Co.  v.  State,  204  U.  S.  403,  51 


§  4321 


Cakhikhs  Undkk  Liabiijty  Act. 


■4;-; 


But  since  it  is  well  established  that  wlioii   a  com- 
modity has  been  delivered  to  a  common  eanier  for  con- 


L.  Ed.  540,  27  Sup.  Ct.  3G0;  Mis- 
sissippi R.  R.  Commission  v. 
Illinois  Cent.  R.  Co.,  203  U.  S.  335, 
51  L.  Ed.  209,  27  Sup.  Ct.  90; 
Martin  v.  Pittsburgh  &  L.  E.  R. 
Co.,  203  U.  S.  284,  51  L.  Ed.  184, 
27  Sup.  Ct.  100,  8  Ann.  Cas.  87, 
McNeill  V.  Southern  R.  Co.,  202  U. 
S.  543,  50  L.  Ed.  1142,  2G  Sup.  Ct. 
722;  Houston  &  T.  C.  R.  Co.  v. 
Mayes,  201  U.  S.  321,  50  L.  Ed.  772. 
26  Sup.  Ct.  491;  New  York  ex  rel. 
Pennsylvania  R.  Co.  v.  Knight,  192 
U.  S.  21,  48  L.  Ed.  325,  24  Sup.  Ct. 
202;  Pennsylvania  R.  Co.  v. 
Hughes,  191  U.  S.  477,  48  L.  Ed. 
268,  24  Sup.  Ct.  132;  Western  U. 
Tel.  Co.  V.  New  Hope,  187  U.  S. 
419,  47  L.  Ed.  240,  23  Sup.  Ct.  204; 
Cleveland.  C,  C.  &  St.  L.  Ry.  Co. 
V.  People,  177  U.  S.  514,  44  L.  Ed. 
868,  20  Sup.  Ct.  722;  Addyston 
Pipe  &  Steam  Co.  v.  United  States, 
175  U.  S.  211,  44  L.  Ed.  136,  20  Sup. 
Ct.  96;  Missouri,  K.  &  T.  Ry.  Co. 
V.  Haber,  169  U.  S.  613,  42  L.  Ed. 
878,  18  Sup.  Ct.  488;  Chicago,  M. 
&  St.  P.  Ry.  Co.  v.  Solan,  169  U.  S. 
133,  42  L.  Ed.  688,  18  Sup.  Ct.  289; 
Hennington  v.  State,  1G3  U.  S.  299, 
41  L.  Ed.  166,  16  Sup.  Ct.  1086; 
Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v. 
Interstate  Commerce  Commission, 
162  U.  S.  184,  40  L.  Ed.  935,  16 
Sup.  Ct.  700;  Louisville  &  N.  R. 
Co.  V.  State.  161  U.  S.  677,  40  L. 
Ed.  849,  16  Sup.  Ct.  714;  Geer  v. 
State,  161  U.  S.  519,  40  L.  Ed.  793, 
16  Sup.  Ct.  600;  Pittsburg  &  S. 
Coal  Co.  V.  Bates,  156  U.  S.  577. 
39  L.  Ed.  538,  15  Sup.  Ct.  415;  In- 
terstate Commerce  Commission  v. 
Brimson.  154  U.  S.  447,  38  L.  Ed. 
1047,  14  Sup.  Ct.  1125;  Wabash.  St. 
L.  &  P.  Ry.  Co.  V.  People.  118  U.  S. 
557,  30  L.  Ed.  244,  7   Sup.  Ct.  4; 


Stone  V.  Farmers'  Loan  &  Trust 
Co.,  116  U.  S.  307,  29  L.  Ed.  636, 
6  Sup.  Ct.  334,  388,  1191;  Wiggins 
Ferry  Co.  v.  City  of  East  St.  Louis, 
107  U.  S.  365,  27  L.  Ed.  419.  2 
Sup.  Ct.  257;  Lord  v.  Goodall, 
Nelson  &  Perkins  Steamship  Co., 
102  U.  S.  541,  26  L.  Ed.  224; 
Keokuk  Northern  Line  Packet  Co. 
v.  City  of  Keokuk,  Iowa,  95  U.  S. 
80,  24  L.  Ed.  377;  Sherlock  v. 
Ailing,  93  U.  S.  99,  23  L.  Ed.  819; 
Slaughter  House  Cases,  16  Wall, 
(U.  S.)  36.  21  L.  Ed.  394;  Walker 
V.  Western  Transp.  Co..  3  Wall.  (U. 
S.)  150,  18  L.  Ed.  172;  Moore  v. 
American  Transp.  Co.,  24  How. 
(U.  S.)  1,  16  L.  Ed.  674;  Sinnot  v. 
Davenport,  22  How.  (U.  S.)  227, 
16  L.  Ed.  243;  Smith  v.  Maryland, 
18  How.  (U.  S.)  71,  15  L.  Ed.  269; 
Martin  v.  Waddell,  16  Pet.  (U.  S.) 
367,  10  L.  Ed.  997;  United  States 
V.  De  Witt,  9  Wall.  (U.  S.)  41,  19 
L.  Ed.  593;  License  Tax  Cases,  5 
Wall.  (U.  S.)  462,  18  L.  Ed.  497. 

Alabama.  Alabama  Great  South- 
ern R.  Co.  V.  McClesky,  160  Ala. 
630,  49  So.  433. 

Arkansas.  Chicago,  R.  I.  &  P. 
Ry.  Co.  V.  State,  86  Ark.  412,  111 
S.  W.  456. 

Colorado.  Rio  Grande  South- 
ern R.  Co.  V.  Campbell,  44  Colo. 
1,   96   Fac.    986. 

Delaware.  Winkler  v.  Phila- 
delphia &  R.  Ry.  Co.,  4  Penn. 
(Del.)    80,  53  Atl.  90. 

Florida.  State  v.  Atlantic  Coast 
Line  R.  Co..  56  Fla.  617,  32  L.  R. 
A.  (N.  S.)  639,  47  So.  969;  Pensa- 
cola  &  A.  R.  Co.  V.  State,  25  Fla. 
310,  3  L.  R.  A.  661.  5  So.  833. 

Georgia.  Stephens  v.  Central  of 
Georgia  R.  Co..  138  Ga.  625,  42  L. 


744 


Injuries  to  Interstate  Employes. 


[§  432 


tinuoiis    transportation    to    a    point    in    another    state, 
interstate      commerce     then      be2'ins     and      continues 


R.  A.  (N.  S.)  541,  Ann.  Cas.  1913E 
609,  75  S.  E.  1041. 

Illinois.  Staley  v.  IHinois  Cent. 
R.  Co.,  268  111.  356,  L.  R.  A.  191GA 
450,  109  N.  E.  342;  Luken  v.  Lake 
Shore  &  M.  S.  R.  Co.,  248  111.  377, 
140  Am.  St.  Rep.  220,  21  Ann.  Cas. 
82,  94  N.  E.  175;  People  ex  rel. 
Stead  V.  Chicago,  I.  &  L.  R.  Co., 
223  III.  581,  7  Ann.  Cas.  1,  79  N.  E. 
144;  Chicago,  B.  &  Q.  R.  Co.  v. 
Jones,  149  111.  361,  24  L.  R.  A. 
141,  41  Am.  St.  Rep.  278,  37  N.  E. 
247,  writ  of  error  dismissed  41  L. 
Ed.  1184,  17  Sup.  Ct.  992  (mem. 
dec). 

Indiana.  Southern  R.  Co.  v. 
Railroad  Commission  of  Indiana 
179  Ind.  23,  100  N.  E.  337;  Pitts- 
burg, C,  C.  &  St.  L.  R.  Co.  V. 
State,  172  Ind.  147,  87  N.  E.  1034; 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co. 
V.  Hartford  City,  170  Ind.  674,  20 
L.  R.  A.   (N.  S.)   461,  82  N.  E.  787, 

85  N.  E.  362;  Brechbill  v.  Randall, 
102  Ind.  528,  52  Am.  Rep.  695,  1 
N.  E.  362;  Sears  v.  Warren,  36  Ind. 
267,  10  Am.  Rep.  62, 

Iowa.  State  v.  Chicago,  M.  &  St 
P.  R.  Co.,  152  Iowa  317,  130  N.  W 
802;  McGuire  v.  Chicago,  B.  &  Q 
R.  Co.,  131  Iowa  340,  38  L.  R.  A 
(N.  S.)  706,  108  N.  W.  902;  Mer 
chants'  Transfer  Co.  v.  Board  of 
Review  City  of  Des  Moines,  128 
Iowa  732,  2  L.  R.  A.   (N.  S.)    662, 

5  Ann.  Cas.  1016,  105  N.  W.  211. 
Kansas.       Ratcliff     v.     Wichita 

Union  Stockyards  Co.,  74  Kan.  1, 

6  L.  R.  A.  (N.  S.)  834,  118  Am. 
St.    Rep.    298,    10    Ann.    Cas.    1016, 

86  Pac.  150. 

Massachusetts.  Baker  Co.  v. 
Brown,  214  Mass.  196,  100  N.  E. 
1025;    Com.  v.  Mulhall,  162  Mass. 


496,  44  Am.  St.  Rep.  387,  39  N.  E. 
183. 

Missouri.  Lusk  v.  Atkinson,  268 
Mo.  109,  186  S.  W.  703;  State  v. 
Missouri  Pac.  R.  Co.,  242  Mo.  339, 
147  S.  W.  118;  State  v.  Missouri 
Pac.  R.  Co.,  212  Mo.  658,  111  S. 
W.  500;  Wilson  v.  Kansas  City,  St. 
.T.   &   C.   B.    R.   Co.,    60   Mo.    184. 

Montana.  State  v.  Northern  Pac. 
R.  Co.,  36  Mont.  582,  15  L.  R.  A. 
(N.  S.)  134,  13  Ann.  Cas.  144,  93 
Pac.  945. 

New  York.  People  v.  Erie  R. 
Co.,  198  N.  Y.  369,  29  L.  R.  A.  (N. 
S.)  240,  139  Am.  St.  Rep.  828,  19 
Ann.  Cas|.  811,,  91  N.  E.  849; 
People  V.  Budd,  117  N.  Y.  1,  5  L. 
R.  A.  559,  15  Am.  St.  Rep.  460,  22 
N.    E.    670,    682. 

Ohio.  Detroit,  T.  &  I.  R.  Co.  v. 
State,  82  Ohio  St.  60,  137  Am.  St. 
Rep.   758,  91  N.   E.   869. 

Oklahoma.     Chicago,  R.  I.  &  P. 

Ry.  Co.  V.  State,  Okla.  , 

157    Pac.    1039;    Chicago,    R.    I.    & 

P.    Ry.    Co.    V.    Bruce,   Okla. 

,  150  Pac.  880. 

Pennsylvania.  Pennsylvania  R. 
Co.  V.  Ewing,  241  Pa.  581,  49  L. 
R.  A.  (N.  S.)  977,  Ann.  Cas.  1915B 
157,  88  Atl.  775. 

South  Carolina.  McCutchen  v. 
Atlantic  Coast  Line  R.  Co.,  81  S. 
C.  71,  61  S.  E.  1108;  De  Lorme  v. 
Atlantic  Coast  Line  R.  Co.,  79  S. 
C.  370,  60  S.  E.  440. 

Texas.  Galveston,  H.  &  S.  A. 
Ry.   Co.  V.  J.  H.  Nations  Meat  & 

Supply    Co.,    Tex.    Civ.    App. 

,  136  S.  W.  833;  Wood,  Hagen- 

barth  Cattle  Co.  v.  Galveston,  H. 

&  S.  R.  Ry.  Co., Tex.  Civ.  App. 

,  130  S.  W.  857;  Texas  &  P.  R. 

Co.    v.    Taylor,    103    Tex.    367,    126 


§  432] 


Cahrjkrs  UxitKK  Liability  Act. 


■40 


tliroiiglioiii   until   the   freiglit   readies   tlie   point    wliere 
II1C   iiai'ties  intcMidcd  tliat   llie  movement  should   fiiinlly 


S.   W.    1117,   1200;   Texas  &   N.   O. 

R.   Co.   V.   Sabine   Tram   Co.,  

Tex.    Civ.    App.    ,    121    S.    W. 

256;    Gulf,   C.    &    S.    F.    R.    Co.    v. 
State,  97  Tex.  274,  78  S.  W.  495. 

Virginia.  Norfolk  &  W.  R.  Co. 
V.  Com.  93  Va.  749,  34  L.  R.  A. 
(N.  S.)  105,  15  Am.  St.  Rep.  827, 
24   S.  E.   837. 

Wisconsin.  State  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  136  Wis.  407,  19 
L.  R.  A.  (N.  S.)  326,  117  N.  W. 
686. 

"It  follows  that  all  the  powern 
which  inhere  in  the  people  of  a 
state,  and  which  have  not  been 
expressly  granted  to  the  United 
States  and  not  prohibited  to  the 
states,  still  reside  with  the  peo- 
ple with  respect  to  common  car- 
riers of  interstate  commerce  as 
well  as  to  persons  and  companies 
engaged  in  other  lines  of  busi- 
ness." People  ex  rel.  Chicago,  I. 
&  L.  R.  Co.,  223  111.  581,  7  Ann. 
Cas.   1,  79  N.  E.  144. 

11.  United  States.  Chicago,  K. 
&  S.  R.  Co.  V.  Kindlesparker,  148 
C.  C.  A.  17,  234  Fed.  1;  United 
States  ex  rel.  Attorney  General 
V.  Union  Stockyards  &  Transit 
Co.  of  Chicago,  192  Fed.  330;  St. 
Joseph  Stockyards  Co.  v.  United 
States,  110  C.  C.  A.  432,  187  Fed. 
104;  United  states  v.  Illinois  Ter- 
minal R.  Co.,  168  Fed.  546;  Belt 
R.  Co.  of  Chicago  v.  United  States, 
93  C.  C.  A.  666,  168  Fed.  542,  22 
L.  R.  A.  (N.  S.)  582;  United 
States  V.  ('hicagu  Great  Western 
Ry.  Co..  162  Fed.  775;  United 
States  V.  Standard  Oil  Co.  of  Indi- 
ana, 155  Fed.  305;  United  States 
V.  Northern  Pac.  Terminal  R.  Co.. 
144   Fed.   861. 


Alabama.  Western  Ry.  of  Ala- 
bama V.  Mays,  Ala.  ,  72 

So.  641. 

Illnois.  Devine  v.  Chirago  &  C. 
River  R.  Co.,  257  111.  449,  102  N. 
E.    803. 

Iowa.  Ross  v.  Sheldon,  176 
Iowa  618,   154  N.   W.   499. 

Louisiana.  Louisiana  Ry.  &  Nav. 
Co.  v.  Holly,  127  La.  615,  53  So. 
882. 

Massachusetts.  Morrison  v.  Com- 
mercial   Towljoat   Co..   Mass. 

,   111;  N.  E.  499. 

Michigan.  Gaines  v.  Detroit,  G. 
H.  &  M.  R.  Co.,  181  Mich.  376, 
148  N.  W.  :-^97. 

Missouri.  Trowbridge  v.  Kansas 
City  &  W.  B.  Ry.  192  Mo.  App.  52. 
179  S.  W.  777. 

Texas.     Gulf,  C.  &  S.  F.  Ry.  Co. 

v.    Mathis.    Tex.    Civ.    App. 

,  194  S.  W.  1135. 

Washington.  Anset  v.  Colum- 
bia &  P.  S.  R.  Co.,  89  Wash.  609, 
154  Pac.  1100. 

West  Virginia.  Findley  v.  Coal 
&  Coke  Co.,  76  W.  Va.  747.  87  S. 
E.  198. 

"True,  defendant's  railroad,  in 
a  physical  sense,  was  entirely 
within  the  limits  of  the  state  of 
Michigan,  but  this  did  not  prevent 
defendant  from  connecting  the 
road  with  admittedly  interstate 
lines  and  so  engaging  in  inter- 
state commerce;  in  every  practi- 
cal sense,  according  to  the  present 
record,  defendant  had  at  the  time 
in  question  appropriated  its  road 
as  well  as  its  yards  to  the  trans- 
portation and  handling  of  inter- 
state traffic  as  definitely  as  it  had 
of  traffic  of  an  intrastate  charac- 


'4i; 


In.i TRIES  TO  Interstate  Employes. 


[§  432 


end,  such  carriers,  by  accepting  any  freight  for  ship- 
ment to  or  from  another  state,  or  by  participating  to 
any  extent  in  the  movement  thereof,  are  thereby  en- 
gaged in  interstate  commerce,  within  the  purview  of  the 
federal  act.  notwithstanding  their  operation  may  be 
confined  within  the  limits  of  a  single  city,  county  or 
state.''  This  is  true  though  the  shipment  is  made  by 
the  carrier  without  any  common  control,  management 
or  arrangement  with  another  carrier  for  a  continuous 
carriage  or  shipment.'^ 

The  rule  that  a  earner  engaged  in  transportation 
between  points  in  the  same  state  and  whose  lines  do 
not  extend  beyond  the  boundaries  of  a  single  state,  is 
under  the  potential  control  of  Congress  by  virtue  of 
the  commerce  clause  when  it  participates  in  the  con- 
tinuous movement  of  commerce  from  one  state  to  another 
even  without  any  common  arrangement  or  through  bill- 
ing with  another  carrier,  was  first  definitely  established 
by  the  national  Supreme  Court  as  to  vessels  on  the 
navigable  waters  of  the  United  States'^  and  subsequent- 


ter,  and  these  conditions  existed 
at  the  time  of  the  accident  and 
afterwards.  When  a  company 
thus  in  effect  dedicates  such  a 
road  and  the  yards  to  a  dual  use 
— interstate  and  intrastate — it  in- 
vests the  road  with  the  character- 
istics of  an  interstate  line  and 
subjects  it  to  the  obligations  of 
that  sort  of  a  line.  It  makes  it  a 
part  of  the  through  line  and  be- 
comes entitled  to  a  part  of  the  re- 
ceipts derived  from  the  through 
service."  Chicago,  K.  &  S.  R.  Co. 
V.  Kindlesparker,  148  C.  C.  A.  17, 
2.34   Fed.   1. 

"It  appears,  however,  that  by 
means  of  connections  with  other 
lines  of  railway  more  than  80 
per  cent  of  the  business  of  the 
interurban  line  was  interstate 
business.  It  received  freight  from 
connecting  lines  originating  with- 


out the  state  and  destined  to 
points  upon  the  line  of  the  de- 
fendant. The  defendant  railway 
was  therefore  engaged  in  inter- 
state commerce."  Ross  v.  Shel- 
don, 176  Iowa  618,  1.54  N.  W.  499. 

12.  Baer  Bros.  Mercantile  Co. 
V.  Denver  &  R.  G.  R.  Co.,  233  U. 
S.  479,  58  L.  Ed.  1055,  34  Sup.  Ct. 
641;  United  States  v.  Union  Stock- 
yard &  Transit  Co.  of  Chicago,  226 
U.  S.  286,  57  L.  Ed.  226,  33  Sup. 
Ct.  83;  United  States  v.  Union 
Stockyard  &  Transit  Co.  of  Chi- 
cago, 192  Fed.  330;  United  States 
V.  Colorado  &  N.  W.  R.  Co.,  85  C. 
C.  A.  48,  157  Fed.  342;  United 
States  V.  Colorado  &  N.  W.  R.  Co., 
85  C.  C.  A.  27,  157  Fed.  321,  15  L. 
R.  A.  (N.  S.)  167,  13  Ann.  Cas. 
893. 

13.  The  Daniel  Ball,  10  Wall. 
(U.  S.)   557,  19  L.  Ed.  999. 


§  432]  Carriers  ITndkk  Liability  Act.  i-^> 

ly  as  to  carriei-s  on  land."    Tin;  court  lield  in  the  Daniel 
Ball   case,  that  a  steam  vessel  engaged   as  a  common 
carrier  on  Grand  River  exclusively  between  Grand  "Rap- 
ids and   Grand  Haven,  Mich.,   in  receiving  and   trans- 
porting  goods  in   continuous   transportation   from   one 
state  to  another,  was  engaged  in  commerce  l)etween  the 
states,  although  the  steamer  did  not  ran  in  connection 
with  or  in  continuation  of  any  line  of  vessels  or  rail- 
ways leading  to  other  states.    In  this  case  the  court  laid 
stress  on  the  fact  tliat  the  entire  authority  of  Congress 
over  interstate  commerce  would  l)e  successfully  defeated 
and  thwarted  if  several  agencies,  acting  independently 
of  one  another  but  performing  links  in  the  continuous 
transpoi-tation  of  interstate   freight,   might,   free   from 
federal  control,  take  up  commodities  at  the  boundary 
line  of  a  state  and  leave  them  at  the  boundary  line  at 
the  other  end.    "There  is  undoubtedly  an  internal  com- 
merce," said  the  court,  "which  is  subject  to  the  control 
of  the  States.     The   power   delegated   to   Congress   is 
limited  to  commerce  'among  the  several  States,'  with 
foreign  nations,  and  with  the  Indian  tribes.     This  lim- 
itation necessarilj^   excludes   from   Federal    control    all 
commerce  not  thus  designated,  and  of  course  that  com- 
merce which  is  carried  on  entirely  within  the  limits  of 
a  State,  and  does  not  extend  to  or  affect  other  States. 
In  this  case  it  is  admitted  that  the  steamer  was  engaged 
in  shipping  and  transporting  down  Grand  River,  goods 
destined  and  marked  for  other  States  than  Michigan, 
and  in  receiving  and  transporting  up  the  river  goods 
brought  within  the  State  from  without  its  limits;  but 
inasmuch  as  her  agency  in  the  transportation  was  en- 
tirely within  the  limits  of  the  State,  and  she  did  not 
run  in  connection  with,  or  in  continuation  of,  any  line 
of  vessels  or  railway  leading  to  other  States,  it  is  con- 

14.    Pennsylvania      R.      Co.     v.  27  Sup.  Ct.  159,  New  York  ex  rel. 

Clark  Bros.  Coal  Min.  Co.,  238  U.  Pennsylvania    R.    Co.    v.    Knight, 

S.  456,  59  L.  Ed.  1406,  35  Sup.  Ct.  192  U.  S.  21,  48  L.  Ed.  325,  24  Sup. 

896;    Illinois   Cent.    R.    Co.    v.    De  Ct.   202;    Norfolk  &   W.   R.   Co.   v. 

Fuentes,  236  U.  S.  157,  59  L.  Ed.  Pennsylvania,    136    U.    S.    114,    34 

517,   35    Sup.   Ct.    275;    Rearick   v.  L.  Ed.  394,   10  Sup.  Ct.  958. 
Com..  203  U.  S.  507,  51  L.  Ed.  295, 


7-1:8  Injuries  to  Interstate  Employes.         [§  432 

tended  that  she  was  engaged  entirely  in  domestic  com- 
merce. But  this  conclusion  does  not  follow.  So  far  as 
she  was  emploj'ed  in  transporting  goods  destined  for  . 
other  States,  or  goods  In'ought  from  without  the  limits  of 
Michigan  and  destined  to  places  within  that  State,  she 
was  engaged  in  commerce  between  the  States,  and  how- 
ever limited  that  commerce  may  have  been,  *she  was,  so 
far  as  it  went,  subject  to  the  legislation  of  Congress. 
She  was  employed  as  an  instrument  of  that  commerce; 
for  whenever  a  commodity  has  begun  to  move  as  an 
article  of  trade  from  one  State  to  another,  commerce  in 
that  commodity  between  the  States  has  commenced. 
The  fact  that  several  different  and  independent  agencies 
are  employed  in  transporting  the  commodity,  some  act- 
ing entirely  in  one  State,  and  some  acting  through  two 
or  more  States,  does  in  no  respect  affect  the  character 
of  the  transaction.  To  the  extent  in  which  each  agency 
acts  in  that  transportation,  it  is  subject  to  the  regula- 
tion of  Congress." 

Whether  a  carrier  operating  entirely  within  a  single 
state  transporting  articles  of  commerce  shipped  in  con- 
tinuous passage  from  places  without  the  state  to  sta- 
tions on  its  road,  or  from  stations  on  its  road  to  points 
without  the  state,  free  from  any  common  control,  man- 
agement or  arrangement  with  another  carrier  for  a  con- 
tinuous carriage  or  shipment,  is  engaged  in  interstate 
commerce,  was  formerly  denied''  by  one  Federal  Circuit 
Court  of  Appeals  and  affinned'''  by  another,  but  this 
controversy  arose  largely  from  a  disagreement  between 
the  courts  as  to  the  construction  that  should  be  placed 
upon  the  Act  to  Regulate  Commerce  before  the  Hepburn 
amendment  of  1906.^'^     In  the  Geddes  case,   cited,  the 

15.  United  States  v.  Geddes,  65  follows:  "The  provisions  of  this 
C.  C.  A.  320,  131  Fed.  452.  act    shall    apply    to    any    common 

16.  United  States  v.  Colorado  &  carrier  or  carriers  engaged  in 
N.  W.  R.  Co.,  85  C.  C.  A.  27,  157  the  transportation  of  passengers 
Fed.  321,  15  L.  R.  A.  (N.  S.)  167,  or  property  wholly  by  railroad,  or 
13  Ann.  Cas.  893.  partly  by   railroad  and   partly  by 

17.  Act  Feb.  4,  1887,  c.  104,  sec.  water,  when  both  are  used,  under 
1,  24  Stat.  379  (3  Fed.  Stat.  Ann.,  a  common  control,  management  or 
p.   809).     That  definition   was   as  arrangement,     for     a     continuous 


§  433]  Cakkikhs  Under  Liauit.tty  Act.  749 

court  held  that  tlie  plirase  "common  control,  manage- 
ment or  arrangement"  applied  to  carriers  wholly  by 
railroad  as  well  as  those  partly  ))y  railroad  and  partly 
by  waloi'.  In  the  oilier  case,  cited,  it  was  held  that  the 
l)lii-ase  (|U()t(Ml  onlx  api)lied  1o  carriers  partly  by  rail- 
road and  ])ar1ly  by  water.  Which  of  these  two  courts 
was  correct  in  interpreting-  the  Interstate  Commerce  Act 
as  it  then  read,  need  not  concern  a  lawyer  bringing  a 
suit  under  the  Federal  Employers'  Liability  Act  for 
the  reason  that  the  Interstate  Commerce  Act  was  amend- 
ed in  ]1)06  so  that  the  clause  "under  a  common  control, 
management  or  arrangement"  now  (lualifies  carriers 
partly  by  railroad  and  partly  l)y  water  and  has  no  ap- 
plication to  carriers  wholly  l)y  railroad/^ 

§  433.  Railroad  Carriers  Engaged  in  Foreign  Com- 
merce Subject  to  the  Statute.  The  provisions  of  the  na- 
tional Employers'  Liability  Act  apply  not  only  to  car- 
riers by  railroad  engaged  in  commerce  between  the 
states,  but  also  to  carriers  by  railroad  engaged  in  com- 
merce between  the  states  or  territories  and  foreign  na- 
tion or  nations.  From  the  language  of  the  statute, 
therefore,  it  necessarily  follows  that  any  common  car- 
rier by  railroad  engaged  in  transporting  projoerty  from 
any  point  in  the  United  States  to  Canada  and  to  Mexico, 
and  vice  versa,  is  subject  to  the  act. 

A  carrier  engaged  in  transporting  property  from  a 
point  in  a  state  to  a  port  in  the  same  state  for  trans- 
shipment to  a  foreign  country  is  engaged  in  foreign 
commerce  within  the  statute  although  its  line  may  be 
confined  within  the  boundary  of  that  state.  For  example, 
a  shipment  from  a  point  in  Louisiana  to  New  Orleans, 
La.,  by  rail  for  export  constitutes  foreign  commerce  and 
not  intrastate  commerce,  so  that  railroad  employes  en- 
gaged in  such  work  are  within  the  federal  act.     The 

carriage    or    sliipmeut    from    one  18.    Act  of  June  29,  1906  c.  3591, 

state    or    territory    of   the    United  sec.  1  and  sec.  11,  34  Stat.  584,  595 

States,  or  the  District  of  Coluia-  (Fed.    Stat.    Ann.    1909    Supp.,    p. 

bia,  to  another  state  or  territory  255).     See  section  90,  supra. 
of  the  United  States,  or  the  Dis- 
trict of  Columbia." 


750  Injuries  to  Interstate  Employes.         [§  433 

phrase  "engaging  in  commerce  between  any  of  the  states 
or  territories  and  any  foreign  nation  or  nations,"  found 
in  the  first  section  of  the  Employers'  Liability  Act, 
has  been  assigned  a  definite  meaning  by  the  national 
courts  in  construing  other  statutes  containing  similar 
terms.'^ 

§  434.  Lessor  of  Railroad  Engaged  in  Interstate 
Commerce  Liable,  When.  If,  under  the  laws  of  the  state, 
the  lessor  of  a  railroad  remains  responsible  for  the  acts 
of  the  lessee  as  tlie  statutes  of  several  of  the  states  pro- 
vide, a  railroad  company  which  leases  its  entire  line  to 
another  railroad  company  doing  an  interstate  business, 
creates  the  lessee  its  agent  and  the  lessor  is  a  common 
carrier  by  railroad  engaging  in  interstate  commerce, 
and  the  federal  act  controls  as  to  its  liability  for  in- 
juries to  employes  of  the  lessee  engaged  in  interstate 
commerce.  This  is  true  even  though  the  railroad  leased 
is  confined  within  the  boundaries  of  one  state.  Both 
such  companies,  while  the  lessee  is  engaged  in  inter- 
state commerce,  are  within  the  tenns  of  the  national 
statute.^"  In  the  Zachary  case,  cited,  the  deceased  loco- 
motive fireman  was  an  employe  of  the  Southern  Eail- 
way  Company,  the  lessee  of  the  defendant  in  the  case. 
The  lessor's  activity  in  the  operation  of  the  railroad 
was  confined  solely  to  receiving  annual  rents  from  the 
Southern  Railway  Company  and  distributing  them 
among  its  stockholders.  The  state  law  of  North  Car- 
olina provided  that  the  lessor  of  a  railroad,  notwith- 
standing the  lease,  was  liable  for  all  of  the  lessee's  acts 
of  commission  and  omission  in  operating  the  road,  al- 
though the  lessor  was  not  actually  engaged  in  either. 

Construing  such  leases  under  the  Federal  Employ- 
ers' Liability  Act,  the  court  said:   "It  is  plain  enough, 

19.  See  section  4,  supra.  ville  &  N.  Ry.  Co.,  211  Fed.  721; 

20.  North  Carolina  R.  Co.  v.  Copper  River  &  N.  W.  R.  Co.  v. 
Zachary,  232  U.  S.  248,  58  L.  Ed.  Heney,  128  C.  C.  A.  131,  211  Fed. 
591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A.  459;  Campbell  v.  Canadian  North- 
109,  Ann.  Cas.  1914C  159;  Erie  R.  ern  R.  Co.,  124  Minn.  245,  144  N. 
Co.  V.  Krysienski,  151  C.  C.  A.  218,  W.    772. 

238  Fed.  142;  Nordgard  v.  Marys- 


<^  434]  Carrikhs  ljNi>hi{  LiAKij.iTY  Act.  7.'>1 

liowever,  that  tlie  effoci  of  Hie  rule  thus  laid  down, 
especially  in  view  of  the  grounds  upon  wliieh  it  is  based, 
is,  that  although  a  railroad  lease  as  between  tlie  parties 
may  have  the  force  and  effect  of  an  ordinary  lease,  yet 
with  respect  to  the  railroad  operations  conducted  under 
it,  and  everything  that  relates  to  the  performance  of  the 
l)ublic  duties  assumed  by  the  lessor  under  its  chaKer, 
such  a  lease — certainly  so  far  as  concerns  the  rights  of 
third  parties,  including  employes  as  well  as  patrons — 
constitutes  the  lessee  the  lessor's  substitute  or  agent, 
so  that  for  whatever  tlie  lessee  does  or  fails  to  do, 
whether  in  interstate  or  in  intrastate  commerce,  the 
lessor  is  responsible.  This  being  the  legal  situation 
under  the  local  law,  it  seems  to  us  that  it  must  and  does 
result,  in  the  case  before  us,  that  the  lessor  is  a  'com- 
mon carrier  by  railroad  engaging  in  commerce  between 
the  states,'  and  that  the  deceased  was  'employed  by 
such  carrier  in  such  commerce,'  within  the  meaning  of 
the  federal  act;  provided,  of  course,  he  was  employed 
by  the  lessee  in  such  commerce  at  the  time  he  was  kill- 
ed." But  the  Supreme  Court  of  Illinois  held,  in  a  case 
decided  ten  months  after  the  opinion  in  the  Zachary 
case  was  delivered,  that  under  the  federal  act  the  owner 
of  a  railroad  track  was  not  liable  to  an  employe  of  a 
licensee  of  the  same  track,  both  being  engaged  in  inter- 
state commerce,  for  the  reason  that  the  relation  of  mas- 
ter and  servant  did  not  exist  between  the  employe  of 
the  licensee  and  the  owner  of  the  track. '^  In  the  Wag- 
ner case,  A,  a  railroad  .company  and  the  defendant  in 
the  case,  owned  a  Y-track  which  was  a  part  of  its  tracks 
on  a  certain  street  in  Chicago.  This  Y-track  ran  north- 
east and  connected  at  one  end  with  the  tracks  belong- 
ing to  B  and  at  the  other  end  with  tracks  belonging  to 
C.  Alongside  of  the  Y-track  and  on  A's  property  was 
a  semaphore  post  16  feet  high  which,  however,  was 
erected  by  and   belonged   to   C     The  plaintilT,   a   con- 

21.  Wagner  v.  Chicago  &  A.  R.  judges  in  this  case  concurred  In 
Co.,  265  in.  245,  Ann.  Cas.  1916A  the  ruling,  but  two  judges  dis- 
778,    106    N.    E.    809.      All    of    the       sented   on   another  point. 


752  Injuries  to  Interstate  Employes.         [§  434 

ductor  in  charge  of  a  switching  crew,  was  an  employe 
of  D.    At  the  time  of  his  injury  he  was  assisting  in  the 
movement  of  interstate  cars  and  was  hanging  on  the 
side  of  a  car  on  the  Y-track  when,  owing  to  its  close 
proximity,  he  was  strnck  by  the  semaphore  post  and 
was  severly  injured.    D  company  nsed  the  Y-track  and 
had  been  nsing  it  for  several  years  to  transfer  its  cars 
and  to  make  deliveries  to  other  companies.    The  track 
was  nsed  by  D  with  the  consent  of  A  and  nearly  every 
month  D  had  received  a  bill  from  A  for  the  use  of  this 
track  and  regularly  paid   the   same.     The   semaphore 
post  had  been  in  the  same  place  for  several  years.  While 
on  A's  property  and  close  to  the  Y-track  on  which  plain- 
tiff was  injured,  the  post  was  not  maintained  or  con- 
trolled by  A  or  D  but  by  C  whose  tracks  connected  with 
the  Y-track  at  one  end.     Although  the  semaphore  was 
not  erected  or  maintained  by  it,  the  court  held  that  A 
was  liable  if  it  permitted  it  to  negligently  remain  there; 
that  A  and  D  were  joint  tort-feasors  and  that  A  was 
negligent  in  permitting  the  operation  of  trains  by  its 
licensee  D  over  the  track.     On  the  question  of  A's  lia- 
bility, being  the  sole  defendant,  under  the  Federal  Em- 
ployers' Liability  Act,  to  the  plaintiff,  the  employe  of 
D,  the  court  said:  "Defendant  in  error  had  no  cause  of 
action  against  plaintiff  in  error  under  the  Federal  Em- 
ployers' Liability  Act,  as  that  act  applies  only  where 
the  relation  of  master  and  servant  exists." 

§  435.  Interurban  Electric  Railroads  Included 
Within  the  Act.  Interurban  electric  railroad  compa- 
nies carrying  passengers,  express  or  freight  from  one 
state  to  another  are  common  carriers  within  the  terms 
of  the  Federal  Employers'  Liability  Act.''     An  inter- 

22.    Washington  Ry.  &  Elec.  Co.  States,   241    U.    S.    344,    60    L.    Ed. 

V.  Scala,  244  U.  S.  630,  61  L.  Ed.  1037,  36  Sup.  Ct.  668;  Kansas  City 

1360,    37    Sup.    Ct.    654;     Spokane  Western  R.  Co.  v.  McAdow,  240  U. 

&   I.    E.    R.    Co.   V.    Campbell,    241  S.   51,  60  L.   Ed.   520,   36   Sup.  Ct. 

U.  S.  497,  60  L.  Ed.  1125,  36  Sup.  252,   11   N.    C.   C.   A.    857;    Omalaa 

Ct.    683,    12    N.    C.    C.    A.    1083;  &  C.   B.   St.   Ry.  Co.  v.   Interstate 

Spokane  &  I.  E.  R.  Co.  v.  United  Commerce  Commission,  230  U.  S. 


§    435]  C/AHHIKI5S    rNDKU   JjlAIWLlTV    AcT.  753 

urban  electric  railway  coiiiijaiiy  opcratiji.i^- a  line  from  a 
point  in  Kansas  to  ai^oiiit  in  Missouri,  was  on^a^od  in 
interstate  coinmcrcc  alt li()ii,i;li  att'-r  icacliiiig  Kansas 
(yity,  Kansas,  and  then  inlo  Kansas  City,  Missouri,  a 
street  car  ('()ini)any  rurnislied  tli(!  eleeti'ic  i)ower  and  tlie 
conductor,  and  tlie  interurban  company,  the  niotornian, 
and  the  cars  were  run  over  the  tracks  of  the  street  rail- 
way company."'  "It  is  ch'ar, "  said  Mr.  Justice  Clark 
of  the  national  Supreme  Court,  in  holding  tliat  an  inter- 
urban electric  railroad  was  within  the  act,-*  "that  the 
defendant  was  incorporated  as,  and  at  the  time  of  tlie 
accident  complained  of  was,  a  railway  comi)any,  not  a 
street  railway  company;  that  it  had  full  powers  of 
eminent  domain;  that  at  the  lime  of  the  ac(?ident  com- 
plained of  it  owned  and  operated  a  line  of  electi-ic  rail- 
way extending  from  a  terminus  within  the  Disli'ict  of 
Columbia  to  a  terminus  at  Cabin  John  Creek,  in  the 
State  of  Maryland,  a  large  part  of  the  line  being  con- 
structed on  a  private  right  of  way,  and  that  it  was  at 
that  time  a  common  carrier  of  passengers  for  hire  be- 
tween its  termini.  It  is  argued  that  under  the  decision 
in  Omaha  &  Council  Bluffs  Street  Ry.  Co.  v.  Interstate 
Commerce  Commission,  230  U.  S.  324,  the  railway  of  the 
defendant  was  a  street  railroad  and  that -therefore  the 

324,    57   L.    Ed.    1501,    33    Sup.    Ct.  common  carrier  by  railroad  with- 

890.    46    L.    R.    A.    (N.    S.)    385;  in  the  statute.     To  the  same  ef- 

United  States  v.  Baltimore  &  O.  S.  feet:    Watts  v.   Ohio   Valley   Elec. 

W.  R.  Co.,  226  U.  S.  14,  57  L.  Ed.  R.  Co.,  78  W.  Va.  144,  88  S.  E.  659. 
104,  33  Sup.  Ct.  5,   Southern  Pac.  23.    IMcAdow     v.     Kansas     City 

Co.    V.    Industrial    Accident    Com-  Western  R.  Co.,  192  Mo.  App.  540, 

mission  of  California,  174  Cal.  19,  164,   S.  W.   188. 
161    Pac.    1143;    Ross   v.    Sheldon,  An   interurban   electric   railroad 

176    Iowa    618,    154    N.    W.    499:  receiving    packages    for  shipment 

Washington,  B.  &  A.  Elec.  Co.  v.  to  another  state  is  a  carrier  with- 

Owons, Rid.    ,    101    Atl.  in  the  federal  act  although  it  han- 

532.  dies    no    cars    into    or    out    of   the 

McKee  v.   Ohio   Valley   Elec.   R.  state.     Cholerton   v.   Detroit,  J.   & 

Co.,  78  W.  Va.   131,  88   S.  E.   616,  C.  Ry.  Co., Mich.  ,  163  N. 

in  which   the  court  held  that  an  W.  606. 

interurban  electric  railway  extend-  24.    Washington  Ry.  &  Elec.  Co. 

ing  from  the  city  of  Huntington,  v.  Scala,  244  U.  S.  630,  61  L.  Ed. 

W.    Va.    to    Ashland.    Ky.,    was    a  1360,  37  Sup.   Ct.  654. 

1    Control    Caniors    48 


754  Injuries  to  Interstate  Employes.         ["^  435 

defendant  was  not  a  'common  carrier  by  railroad'  with- 
in the  terms  of  the  Act  of  1908  as  amended.  Tliat  case 
dealt  with  a  purely  street  railway  in  the  streets  of  two 
cities,  and  the  decision  was  that  it  was  not  a  'railroad' 
such  as  was  intended  to  be  placed  under  the  jurisdiction 
of  the  Interstate  Commerce  Commission  by  the  Inter- 
state Commerce  Act  of  1887.  The  case  is  of  negligible 
value  in  determining  either  the  construction  of  the  act 
we  are  considering  in  this  case,  or  the  classification  of 
the  defendant,  which  clearly  enough  is  a  suburban  rail- 
road common  carrier  of  passengers  within  the  scope  of 
the  Federal  Employers'  Liability  Act." 

§  436.  Railroads  Carrying  Passengers  and  no 
Freight.  Although  a  common  carrier  by  railroad  car- 
ries only  passengers  from  one  state  to  another  and 
handles  no  freight,  it  is  nevertheless  engaged  in  inter- 
state commerce  within  the  terms  of  the  federal  act.^"^ 

§  437.    Ships  or  Vessels  not  a  Part  of  a  Railroad 

System.  While  the  first  section  of  the  Act  of  1908  in- 
cludes a  railroad  company's  boats  used  in  interstate 
commerce  and  makes  it  liable  for  defects  or  insufficien- 
cies in  such  lx)ats,  due  to  negligence,  causing  injuries  to 
its  employes  while  employed  in  such  commerce,  yet  the 
federal  statute  does  not  apply  to  a  vessel  not  a  part  of 
a  railroad  system. ^"^  On  the  other  hand,  a  ferry-boat 
used  by  a  railroad  company  in  the  transportation  of 
freight  and  passengers  from  Jersey  City  across  the  river 
to  New  York  state,  is  used  in  interstate  commerce  with- 
in the  meaning  of  the  federal  statute. ^^  In  the  last 
case  cited  the  court  also  held  that  the  Federal  Employ- 
ers' Liability  Act  did  not,  by  implication,  repeal  the 
federal    statutory   provision    permitting   shipowners   to 

25.    Washington  Ry.  &  Elec.  Co.  26.    The   Pawnee,   205   Fed.   333. 

V.  Scala,  244  U.  S.  630,  61  L.  Ed.       See  Section  425,  supra. 
1360,  37  Sup.  Ct.  654;   Washington  27.    The   Passaic,    190    Fed.    644, 

R.  Co.  V.  Downey,  40  A  pp.  Cas.  aff'd  in  122  C.  C.  A.  466,  204  Fed. 
(D.   C.)    147.  266;  Wilcznski  v.  Pennsylvania  R. 

Co., N.  J.  L.  - — ,  100  Atl.  226. 


'^  438]  Caju{JKJ{s  Undkk  Liabiijty  Act.  75;") 

limit  the  liability  as  api)lied  to  actions  for  injuries  to 
employes  on  a  vessel  o])erato(l  ))y  a  railfoarl  r-oinpnny  as 
a  part  of  its  interstate  linc''^ 

§  438.  Street  Railroads  not  Within  the  Terms  of  the 
National  Act.  Street  rail\va\s  which  transport  passen- 
gers or  freight  across  state  lines  or  from  one  state  to 
another,  are  not  included  within  the  terms  of  the  act, 
for  the  statute  mentions  only  common  carriers  "by 
railroad"  and  the  TTnited  States  Supreme  Court  has 
defined  the  term  "railroad"  by  interpretation  as  not 
including  street  railroads,'"  The  same  conclusion  was 
reached  by  the  Kansas  City  Court  of  Appeals  in  a  case 
brought  under  the  Federal  Employers'  Liability  Act."*" 
In  the  case  cited  before  the  United  States  Sujn"eme 
Court,  counsel  for  appellant  cited  decisions  from  twelve 
states,  holding  that  in  a  statute  the  word  "railroad" 
did  not  mean  "street  railroads"  and  the  counsel  for 
defendant  cited  decisions  to  the  contrary  from  an  equal 
number  of  states.  A  similar  disagreement  was  shown 
in  the  briefs  in  federal  tribunals.  Speaking  of  this 
conflict  among  the  decisions  of  the  various  courts,  Justice 
Lamar,  speaking  for  the  court,  said:  "This  conflict  is 
not  so  great  as  at  first  blush  would  appear.  For  all  rec- 
ognize that  while  there  is  similarity  between  railroads 
and  street  railroads,  there  is  also  a  difference.  Some 
courts,  emphasizing  the  similarity,  hold  that  in  stat- 
utes the  word  'railroad'  includes  street  railroad,  unless 
the  contrary  is  required  by  the  context.  Others,  em- 
phasizing the  dissimilarity,  hold  that  'railroad'  does 
not  include  street  railroad  unless  required  by  the  con- 
text, since,  as  tersely  put  by  the  Court  of  Appeals  of 
Kentucky,  'a  street  railroad,  in  a  technical  and  popular 
sense,  is  as  different  from  an  ordinary  railroad   as  a 

28.  Section  4283  R.  S.  (4  Fed.  S.)  385,  rev'g  191  Fed.  40,  179 
Stat.    Ann.,    p.    839).  Fed.  243. 

29.  Omaha  &  C.  B.  St.  Ry.  Co.  30.  Mc.\dow  v .  Kansas  City 
V.  Interstate  Commerce  Commis-  Western  R.  Co.,  192  Mo.  App.  540, 
sion,  230  U.  S.  324,  57  L.  Ed.  1501,  164    S.    W.    188. 

33   Sup.   Ct.   890,   46   L.   R.   A.    (N. 


756  Injuries  to  Inteestate  Employes.         [§  438 

street  is  from  a  road.'  Louisville  &  Portland  R.  Co.  v. 
Louisville  City  E.  Co.,  2  Duvall  175.  But  all  the  deci- 
sions hold  that  the  meaning  of  the  word  is  to  he  deter- 
mined hy  construing-  the  statute  as  a  whole.  If  the 
scope  of  the  act  is  such  as  to  show  that  hoth  classes  of 
companies  were  within  the  legislative  contemplation, 
then  the  word  'railroad'  will  include  street  railroad. 
On  the  other  hand,  if  the  act  was  aimed  at  railroads 
proper,  then  street  railroads  are  excluded  from  the  pro- 
visions of  tlie  statute.  Applying  this  universally  ac- 
cepted rule  of  construing  this  word,  it  is  to  be  noted  that 
ordinary  railroads  are  constructed  on  the  companies' 
own  property.  The  tracks  extend  from  town  to  town, 
and  are  usually  connected  with  other  railroads,  which 
themselves  are  further  connected  with  others,  so  that 
freight  may  be  shipped,  without  breaking  bulk,  across 
the  continent.  Such  railroads  are  channels  of  inter- 
state commerce." 

§  439.  Receivers  of  Railroad  Corporations  Included 
Within  the  Act.  It  is  provided  in  section  7  of  the  fed- 
eral act  that  the  term  "common  carrier"  in  the  first 
section  of  the  act  shall  include  the  receiver  or  receivers 
or  other  persons  or  corporations  charged  with  the  man- 
agement and  operation  of  the  business  of  a  common 
carrier.  Courts  have  both  affirmed''  and  denied''  the 
proposition  that  it  is  necessary  for  the  plaintiff  to  show 
by  proof  that  the  receiver  has  been  duly  appointed,  is 
in  charge  of  and  has  authority  to  operate  the  railroad. 
In  view  of  this  conflict  the  "safety  first"  propaganda 
as  applied  to  legal  procedure  would  seem  to  suggest  to 
the  careful  practitioner,  if  representing  the  plaintiff, 
that  he  obtain  a  certified  copy  of  the  receiver's  ap- 
pointment and  authority  and  offer  it  in  evidence. 

§  440.  Sleeping  Car  Companies  not  Common  Car- 
riers by  Railroad.     A  sleeping  car  company  furnishing 

31.    Hudkins  v.  Bush,  69  W.  Va.  32.    McNulta   v.    Lockridge,    137 

194    71  S.  E.  lOG,  Ann.  Cas.  1913A       111.   270,   31   Am.   St.   Rep.   362,   24 
533'  N.    E.    452,   arg-32    111.    App.    86, 


§  441 1  C'aiuukks  Undkk  Liauility  Act.  757 

sleeping-  cars  iiiidei-  a  contract  with  a  railroad  company 
to  bo  used  l)y  the  common  can-ior  does  not  thereby  as- 
sume 01-  acquire  tlie  status  of  a  common  carrier  by  rail- 
road altiiou^h  it  may  be  eii^a^ed  in  interstate  com- 
merce." Em))loyes  of  such  companies  are  not  therefore, 
within  the  i)urvie\v  of  the  Federal  Emi)loyers'  Lial)ility 
Act.  If,  however,  a  person  is  employed  joint  1\  hy  a 
sleeping-  car  com])any  and  a  railroad  company,  he  is 
under  the  Federal  Act  in  so  far  as  the  liability  of  rail- 
road companies  is  concerned,  if  iii.juicd  while  engaged  in 
interstate  commerce.''* 

§  441.  Express  Companies  not  Common  Carriers  by 
Railroad  Under  Federal  Act.  Express  companies  receiv- 
ing, transporting  and  delivering  articles  of  merchandise 
for  hire  in  facilities  provided  therefor  by  railroad  com- 
})anies  are  not  common  carriers  by  railroad  within  the 
meaning  of  the  Employers'  Liability  Act.-^^  A  similar 
conclusion  was  reached  as  to  the  status  of  exj^ress  com- 
panies under  the  Interstate  Commerce  Act  prior  to  the 
amendment  of  1906  specifically  including  express  com- 
panies."'" Such  companies  are  common  carriers  of  freight 

aff'd  141  U.  S.  327,  35  L.  Ed.  79fi,  In    Taylor    v.    WeUs,    Fargo    & 

12  Sup.  Ct.  11;  WcNulta  v.  Ensch.       Co.,  C.  C.  A.  ,  249   Fed. 

134  111.  46,  24. N.  E.  631,  rev'g  31  109,  the  Federal  Circuit  Court  of 

111.  App.  100.  Appeals  for  the  Fifth  Circuit  held 

33.  Robinson  v.  Baltimore  &  O.  that  an  express  company  was  a 
R.  Co.,  237  U.  S.  84,  59  L.  Ed.  849,  common  carrier  by  railroad  with- 
35  Sup.  Ct.  491,  8  N.  C.  C.  A.  1;  in  the  provisions  of  the  Federal 
Martin  v.  New  York,  N.  H.  &  H.  Employers'  Liability  Act.  But  a 
R.  Co.,  241  Fed.  696;  Pullman  Co.  writ  of  certiorari  was  granted  by 
V.  Linke,  203  Fed.  1017;  Mc-  the  Supreme  Court  and  this  cause 
Dermon  v.  Southern  Pac.  Co.,  122  was  pending  in  that  court  at  the 
Fed.  669;  Lemon  v.  Pullman  time  of  the  publication  of  this 
Palace  Car  Co.,  52  Fed.  262;   Chi-  work. 

cago,  R.  I.  &  P.  R.  Co.  V.  Hamler,  36.    United   States   v.    Morsman, 

215  111.  525,  1  L.  R.  A.  (N.  S.)  674,  42  Fed.  448. 

106    Am.    St.    Rep.    187,    74    N.    E.  '"The    interstate    commerce    act 

705,   rev'g  114   111.  App.    141.  has,  so  far  as  express  companies 

34.  See  Section  424,  supra.  not    operating    railway    lines    are 

35.  Higgins  v.  Erie  R.  Co.,  89  N.  concerned,  wrought  no  change  of 
J.  L.  629,  99  Atl.  98.  See  Section  the  common  law  in  this  regard. 
522,  infra.  At  an  early  day  the  question  was 


'58 


Injuries  to  Interstate  Employes.         [§  441 


but  not  "by  railroad"  a.ltbonii]i  tliey  use  tlie  facilities 
and  cars  furnished  by  railroad  companies.  In  the  case  of 
Chapman  v.  United  States  Express  Company,'"  the  de- 
fendant's counsel  admitted  that  the  federal  act  con- 
trolled the  liability  of  the  company. 

§  442.  All  Carriers  by  Railroad  and  all  their  Em- 
ployes Within  Territories  Included.  As  Congress  has 
full  and  complete  power  over  territories  and  other  pos- 
sessions of  the  United  States,  section  2  of  the  federal 
act,  which  applies  to  all  common  carriers  by  railroad 
and  all  their  employes  in  the  territories,  the  District  of 
Columbia,  the  Panama  Canal  Zone,  or  other  possessions 
of  the  United  States  is  valid.''  Although  the  act  of 
1906  was  declared  invalid  as  to  carriers  engaged  in 
interstate  and  foreign  commerce,  even  that  law  as  to 
all  carriers  and  all  their  employes  in  territories  and 
other  possessions  of  the  United  States,  was  declared 
valid.^^    However,  by  section  2,  supra,  of  the  act  of  1908 


raised  whether  express  companies 
were  subject  to  the  provisions  of 
the  Interstate  Commerce  Act,  and, 
after  full  argument  and  deliberate 
consideration,  the  interstate  com- 
merce commission  unanimously 
decided  that  the  act  did  not  ap- 
ply to  express  companies  proper- 
ly so  termed;  that  is  to  say,  to 
independent  organizations  that 
carried  on  an  express  or  parcel 
business  in  the  usual  manner,  and 
which  did  not  operate  railway 
lines."  Southern  Indiana  Exp. 
Co.  V.  United  States  Exp.  Co.,  88 
Fed.  659. 

37.  192  Mich.  654,  159  N.  W. 
308. 

38.  Santa  Fe  Cent.  R.  Co.  v. 
Friday,  232  U.  S.  694,  58  L.  Ed. 
802,  34  Sup.  Ct.  468;  American  R. 
Co.  of  Porto  Rico  v.  Didricksen, 
227  U.  S.  145,  57  L.  Ed.  456,  33  Sup. 
Ct.  224;  PhHadelphia,  B.  &  W.  R. 
Co.  V.  Schubert,  224  U.  S.  603,  56 


L.  Ed.  911,  32  Sup.  Ct.  589,  1  N.  C. 
C.  A.  892;  American  R.  Co.  of 
Porto  Rico  V.  Birch,  224  U.  S.  547, 
56  L.  Ed.  879,  32  Sup.  Ct.  603;  El 
Paso  &  N.  E.  R.  Co.  v.  Gutierrez, 
215  U.  S.  87,  54  L.  Ed.  106,  30 
Sup.  Ct.  21;  Cound  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.,  173  Fed.  527; 
Friday  v.  Santa  Fe  Cent.  R.  Co., 
16  N.  M.  434,  120  Pac.  316;  Atchi- 
son, T.  &  S.  F.  Ry.  Co.  v.  Tack,  61 
Tex.  Civ.  App.  551,  130  S.  W.  596; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Pickens,  (Tex.  Civ.  App.),  118  S. 
W.  1133;  Atchison,  T.  &  S.  F.  Ry. 
Co.  V.  Mills,  49  Tex.  Civ.  App.  349, 
108  S.  W.  480. 

39.  Washington,  A.  &  Mt.  V.  R. 
Co.  V.  Downey,  236  U.  S.  190,  59  L. 
Ed.  533,  35  Sup.  Ct.  406,  in  which 
the  court  said:  "The  law  here  in- 
volved, as  we  have  said,  is  the 
Employers'  Liability  Act  of  1906. 
Undoubtedly  that  law  as  enacted 
was   in   form   one   of  general   ap- 


§  442] 


Cahiuhrs  tender  Liability  Act. 


7:)!» 


whicli  regulates  only  carriers  by  ra'droad  in  t<'n'itories 
and  otlioi"  jiossossions  of  tlio  United  States,  llir-  act    of 


plication,  but  it  was  hold  (o  be  un- 
constitutional   as    such    a    law    in 
The    Employers'    Lial)ility    Cases, 
207    [J.    S.    463.'    Notwithstanding 
that    ruling,    however,    the   provi- 
sions of  the  Statute,  so  far  as  they 
apply  to  the  District  of  Columbia, 
have    been    decided    to   be    within 
the    power    of    Congress    to    enact 
because   of   its   plenary   authority 
as  the  local  legislature  of  the  Dis- 
trict, and  because  the  intention  to 
make  the  provisions  of  the  law  ap- 
plicable   to    the     District     locally 
was  manifest  and  separable  from 
the    purpose    to    enact    a    statute 
which    would    be    applicable    gen- 
erally     throughout      the      United 
States.      El   Paso   &   N.   E.   Ry.   v. 
Gutierrez.    215    U.     S.    87,    97-98: 
Philadelphia,  Rait.  &  Wash.  R.  R. 
v.    Schubert,    224    U.    S.    603.    610: 
Santa   Fe   Central    Ry.   v.    Friday. 
232  U.  S.  694,  698:   and  see  Butts 
V.   Merchants   Transportation   Co., 
230    U.    S.    126,    137.      Under    this 
condition    there    is    no    ground    to 
maintain  the  proposition  that  the 
statute   as   applicable  to   the    Dis- 
trict of  Columbia  was  adopted  as 
one  of  a  general  charter,  and  that 
therefore   we    have   power   to    re- 
view the  questions  involved.    But 
it  is  said,  the  trolley  cars  were  in 
transit  from  the  State  of  Virginia 
to  the  District  and  therefore  were 
engaged  in  a  movement  from  State 
to  Territory  not  purely  local  in  its 
character  and  hence  there  is  juris- 
diction.    But  this  rests  upon  the 
mistaken  assumption  that  the  test 
of    jurisdiction    is    the    character 
of   the    act    to    which    the    statute 
applies,  and  not  the  nature  of  the 
.statute  itself,   that   is.   whether   it 
is  general  or  local  to  the  District. 


And  this  difficulty  is  not  answer- 
ed by  the  argument  that  becau.se 
the  statute  was  made  controlling 
concerning  acts  not  purely  local, 
therefore  as  the  effect  cannot  be 
greater  than  the  cause,  the  statute 
must  itself  be  said  to  be  for  the 
purposes  of  jurisdiction  not  of  a 
local  character.  But  again  the 
proposition  rests  upon  an  errone- 
ous assumption.  The  test  of 
whether  the  statute  is  general  or 
local  depends  not  upon  the  partic- 
ular question  to  which  it  may  be 
exceptionally  applied  in  a  given 
case,  but  upon  the  exertion  of  leg- 
islative power  which  the  statute 
manifests  and  its  general  opera- 
tion, that  is  to  say,  whether  it  was 
enacted  as  a  statute  of  general 
application  under  the  general  leg- 
islative power  or  whether  it  took 
being  as  the  result  of  the  exercise 
of  the  purely  local  power  of  Con- 
gress to  govern  the  District  of 
Columbia,  and  was  as  a  general 
rule  intended  to  be  so  applicable. 
The  error  of  the  argument  could 
not  be  better  illustrated  than  by 
saying  that  if  the  proposition 
wore  admitted,  it  would  necessi- 
tate deciding  that  a  statute  which 
has  been  held  to  be  beyond  the 
constitutional  power  of  Congress 
to  enact  so  far  as  it  embodied  any- 
thing but  the  exertion  of  local 
power  may  yet  be  enforced  and 
applied  as  a  general  statute.  The 
want  of  foundation  for  the  con- 
tention is  besides  made  plainer  by 
looking  at  the  subject  from  an- 
other point  of  view.  While  the 
transit  in  which  the  train  was  en- 
gaged was  not  purely  local,  the 
accident  complained  of  occurred 
within  the  confines  of  the  District 


760  Injuries  to  Intekstatk  Employes.         [§  442 

1906  was  repealed.  But  it  was  specifically  provided 
in  section  S  of  the  act  of  1908  that  "nothing  in  this' 
act  shall  be  held  to  limit  the  duty  or  liability  of  com- 
mon carriers  or  to  imjiair  the  rights  of  their  employes 
nnder  any  other  act  or  acts  of  Congress,  or  to  affect  the 
prosecution  of  any  pending  proceeding  or  right  of  action 
nnder  the  act  of  Congress  entitled  'An  act  relating  to 
liability  of  common  carriers  in  the  District  of  Columbia, 
and  territories,  and  to  common  carriers  engaged  in 
commerce  between  the  states  and  between  the  states 
and  foreign  nations  to  their  employes,'  approved  June 
eleventh,  nineteen  hundred  and  six." 

§  443.  Beginning  and  Ending  of  Interstate  Charac- 
ter of  Shipments.  The  phrase  "engaging  in  commerce" 
between  the  several  states,  as  used  in  the  first  section 
of  the  Federal  Employers'  Liability  Act,  has  a  well- 
defined  meaning  under  the  decisions  of  the  national 
courts  as  the  same  term  has  been  frequently  construed 
in  interpreting  other  federal  statutes  passed  pursuant 
to  the  power  of  Congress  under  the  commerce  clause. 
When  applied  to  transportation  by  railroad,  to  which 
the  Employers'  Liability  Act  is  limited,  commerce  be- 
tween the  several  states  is  not  to  be  determined  by  the 
billing  or  contract  but  by  the  actual  movement  and 
character  of  the  traffic.*"  There  must  be  a  point  of 
time  when  traffic  intended  for  shipment  to  another  state, 
ceases  to  be  governed  exclusively  by  the  law  of  the 
state  and  begins  to  be  governed  by  the  federal  law. 

The  transportation  of  a  commodity  from  one  state 
to  another  does  not  commence  until  it  has  been  actual- 

of   Columbia   and   the    statute   be-  229  U.  S.  336,  57  L.  Ed.   1215,  33 

came  applicable  concerning  it  be-  Sup.  Ct.   837;     Lusk  v.  Atkinson, 

cause  as  a  local  statute  it  govern-  2G8  Mo.  109,  186  S.  W.  703. 
ed   in   the   absence   of   legislation  "It  is  the  nature  of  the  service 

by  Congress  of  a  general  charac-  performed  by  the  carrier,  and  not 

ter  governing  the  subject."  the  way  in  which  goods  are  billed, 

40.    Baer    Bros.    Mercantile    Co.  that  determines  whether  carriage 

v.  Denver  &  R.  G.  R.  Co.,  233   U.  is  interstate  or  not." — Trimble,  J., 

S.  479,  58  L.  Ed.  1055,  34  Sup.  Ct.  in   Trowbridge   v.   Kansas   City   & 

641;      Railroad      Commission      of  W.    B.    Ry.    192    Mo.   App.    52,    179 

Louisiana  v.   Texas   &   P.   R.   Co.,  S.   W.   777. 


^  443] 


Carrtehs  Txdkr  Ltakiijiv  x\ct 


7(;i 


ly  launched  on  its  way  to  another  state  or  lias  been 
conimittod  to  a  eoniiiion  earri(;r  for  trans[)ortation  to 
such  state/'  J^'roni  the  moment,  therefore,  that  a  ship- 
ment for  a  point  in  another  state  is  accepted  by  a  com- 
mon carriei-,  tliat  carrier  is  en.i^aged  in  interstate  com- 
merce during-  the  entire  period  from  the  time  of  ac- 
ceptance at  the  point  of  origin  until  the  shipment  is 
finally  delivered  to  and  accepted  by  the  consignee  at 
the  point  of  destination;'-  for  tralific  which,  by  reason  of 


41.  Bay  v.  Merrill  &  Ring  Log- 
ging Co.,  243  U.  S.  40,  61  L.  Ed. 
580,  37  Sup.  Ct.  376;  McCluskey 
V.  Marysville  &  N.  R.  Co.,  243  U. 
S.  36,  61  L.  Ed.  578,  37  Sup.  Ct. 
374;  Coe  v.  Errol,  116  U.  S.  517,  29 
L.  Ed.  715,  6  Sup.  Ct.  475. 

42.  United  States.  Kanawha  & 
M.  R.  Co.  V.  Kerse,  239  U.  S.  576, 
60  L.  Ed.  448,  36  Sup.  Ct.  174; 
Pennsylvania  R.  Co.  v.  Mitchell 
Coal  &  Coke  Co.,  238  U.  S.  251, 
59  L.  Ed.  1293,  35  Sup.  Ct.  787; 
Illinois  Cent.  R.  Co.  v.  De  Fuentes, 
23G  U.  S.  157,  59  L.  Ed.  517,  35 
Sup.  Ct.  275;  Texas  &  N.  O.  R. 
Co.  V.  Sabine  Tram  Co.,  227  U.  S. 
Ill,  57  L.  Ed.  442,  33  Sup.  Ct.  229; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Hard- 
wick  Farmers  Elevator  Co.,  226 
U.  S.  426,  57  L.  Ed.  284,  33  Sup. 
Ct.  174,  46  L.  R.  A.  (N.  S.)  203; 
Southern  Pac.  Terminal  Co.  v. 
Interstate  Commerce  Commission, 
219  U.  S.  498,  55  L.  Ed.  310,  31 
Sup.  Ct.  279;  McNeill  v.  Southern 
R.  Co.,  202  U.  S.  543,  50  L.  Ed. 
1142,  26  Sup.  Ct.  722;  United 
States  V.  Pere  IMarquette  R.  Co., 
211  Fed.  220;  Jewel  Tea  Co.  v. 
Lee's  Summit,  Missouri,  198  Fed. 
532:  Belt  R.  Co.  of  Chicago  v. 
United  States,  93  C.  C.  A.  666,  168 
Fed.  542,  22  L.  R.  A.   (N.  S.)   582. 

Arizona.     Southern    Pac.    Co.    v. 

State,   — —    Ariz.    ,    165    Pac. 

303. 


Illinois.  Wagner  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  277  111.  114,  115  N. 
E.  201;  Devine  v.  Chicago  &  C. 
River  R.  Co.,  259  111.  449,  102  N. 
E.  803. 

Kansas.  Easdale  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  100  Kan.  305, 
1(]4  Pac.  104. 

Kentucky.  Louisville  &  X.  R. 
Co.  v.  Meadors'  Adm'r,  176  Ky. 
7G5,   197   S.   W.   440. 

Minnesota.  Breske  v.  Minne- 
apolis &  S.  L.  R.  Co.,  115  Minn. 
386,  132  N.  W.  337. 

Missouri.     Collier  v.  Wabash  R. 

Co.,  Mo.  App.  ,  190  S.  W. 

969;  Reynolds  v.  St.  Louis  South- 
western   Ry.    Co.,    Mo.    App. 

,    190    S.    W.    423;    Bowles    v. 

Quincy,   0.   &   K.   C.    R.    Co.,   

Mo.    App.    ,    187    S.    W.    131; 

Werner  Saw  Mill  Co.  v.  Kansas 
City  Southern  R.  Co.,  194  Mo.  App. 
618;  186  S.  W.  118;  Lusk  v.  Atkin- 
son, 268  Mo.  109,  186  S.  W.  703. 

New  Jersey.  Moran  v.  Central 
R.  Co.  of  New  Jersey,  88  N.  J. 
L.  730,  96  Atl.  1023. 

New  York.  Whalen  v.  New 
Cent.  &  H.  River  R.  Co..  173  N. 
Y.  App.  Div.  268,  159  N.  Y.  Supp. 
244;  Parsons  v.  Delaware.  &  H. 
Co.,  167  N.  Y.  App.  Div.  536.  153 
N.   Y.   Supp.   179. 

Vermont.  Lynch's  Adm'r  v. 
Central  Vermont  R.  Cu  .  89  Vt. 
363,   95   Atl.   683. 


762  Injuries  to  Interstate  Employes.         [§  443 

its  origin  and  destination,  is  interstate,  does  not  lose 
its  distinctive  character  as  such  when  taken  np  and 
carried  forward  by  a  state  carrier  to  a  destination  in 
the  state  in  which  such  carrier  operates  or  when  so  car- 
ried to  be  delivered  to  another  carrier  in  the  same  state 
for  further  transportation  within  the  state.  The  fact 
that  several  different  and  independent  agencies  are  em- 
ployed in  transporting  a  commodity,  some  acting  entire- 
ly in  one  state  and  some  acting  through  two  or  more 
states,  does,  in  no  respect,  affect  the  character  of  the 
transportation.*^ 

When  freight  is  delivered  to  and  accepted  by  a 
carrier  for  transportation  to  another  state,  it  becomes 
a  part  of  interstate  commerce.  The  interstate  charac- 
ter thus  acquired  continues,  at  least,  until  the  load 
reaches  the  point  where  the  "parties  originally  intended 
that  the  movement  should  finally  end."  The  Employ- 
ers' Liability  Act  is  not,  therefore,  limited  to  the  actual 
transportation  itself,  but  as  acceptance  and  delivery  of 
freight  is  a  part  of  interstate  transportation,  the  stat- 
ute covers  the  handling  and  the  delivery  of  interstate 
traffic  by  common  carriers  at  terminal  points.*' 

43.  New  York  ex  rel.  Penn-  44.  Illinois  Cent.  R.  Co.  v.  De 
sylvania  R.  Co.  v.  Knight,  192  U.  Fuentes,  236  U.  S.  157,  59  L.  Ed. 
S.  21,  48  L.  Ed.  325,  24  Sup.  Ct.  517,  35  Sup.  Ct.  275;  Railroad 
202;  Cincinnati,  N.  O.  &  T.  P.  R.  Commission  of  Louisiana  v.  Tex- 
Co.  V.  Interstate  Commerce  Com-  as  &  P.  R.  Co.,  229  U.  S.  336,  57 
mission,  162  U.  S.  184,  40  L.  Ed.  L.  Ed.  1215,  '33  Sup.  Ct.  837; 
935,  16  Sup.  Ct.  700;  Harman  v.  Texas  &  N.  O.  R.  Co.  v.  Sabine 
City  of  Chicago,  147  U.  S.  396,  37  Tram  Co.,  227  U.  S.  Ill,  57  L. 
L.  Ed.  216,  13  Sup.  Ct.  306;  The  Ed.  442,  33  Sup.  Ct.  229;  Rail- 
Daniel  Ball,  10  Wall.  (N.  S.)  557,  road  Commission  of  Ohio  v. 
19  L.  Ed.  999;  Corcoran  v.  Louis-  Worthington,  225  U.  S.  101,  56  L. 
ville  &  N.  R.  Co.,  125  Ky.  634,  101  Ed.  1004,  32  Sup.  Ct.  653. 
S.  W.  1185;  St.  Louis  Southwest-  45.  Jacobs  v.  Southern  R.  Co., 
em  R.  Co.  of  Texas  v.  Arkansas  241  U.  S.  229,  60  L.  Ed.  970,  36 
&  T.  Grain  Co.,  42  Tex.  Civ.  App.  Sup.  Ct.  588;  Pecos  &  N.  T.  R. 
125,  95  S.  W.  656;  Texas  &  P.  Ry.  Co.  v.  Rosenbloom,  240  U.  S.  439, 
Co.  V.  Davis,  93  Tex.  378,  54  S.  W.  60  L.  Ed.  730,  36  Sup.  Ct.  390; 
381,  55  S.  W.  562;  Houston  Direct  Southern  R.  Co.  v.  Lloyd,  239  U. 
Nav.  Co.  V.  Insurance  Co.  of  North  S.  496,  60  L.  Ed.  402,  36  Sup.  Ct. 
America,  89  Tex.  1,  30  L.  R.  A.  210;  Interstate  Commerce  Com- 
713,  59  Am.  St.  Rep.  17,  32  S.  W.  mission  v.  Atchison,  T.  &  S.  F. 
889.  R.   Co.,   234   U.   S.   294,   58   L.   Ed. 


§  444] 


CaRKIKHS  UnI>KH  LlABIIylTV    AcT. 


763 


§  444.  Hauling  Empty  Cars  or  Company  Property 
over  State  Line.  A  coiiiioon  carrier  by  railroad  wliiie 
lran.s])orliiig  empty  cars,  or  cars  containing  only  })ro])- 
erty  owned  by  the  railroad  company,  from  one  state  to 
another,  is  engaged  in  interstate  commerce  within  the 
meaning  of  the  national  statute.*''  But  after  an  inter- 
state journey  of  empty  cars  has  come  to  an  end  by  a 
delivery  at  the  intended  destination  point  in  another 
state,  a  subsequent  new  and  independent  movement  be- 
tween two  points  in  the  same  state  does  not  constitute 


1319,  34  Sup.  Ct.  814;  North  Caro- 
lina R.  Co.  V.  Zachary,  232  U.  S. 
248,  58  L.  Ed.  591,  34  Sup.  Ct. 
305,  9  N.  C.  C.  A.  109,  Ann.  Cas. 
1914C  159;  St.  Louis,  S.  F.  &  T. 
R.  Co.  V.  Seale,  229  U.  S.  156,  57 
L.  Ed.  1129,  33  Sup.  Ct.  651,  Ann. 
Cas.  1914C  156;  Seaboard  Air 
Line  Ry.  Co.  v.  Moore,  228  U.  S. 
433,  57  L.  Ed.  907,  33  Sup.  Ct. 
580;  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Hardwick  Farmers  Elevator 
Co.,  226  U.  S.  426,  57  L.  Ed.  284, 
33  Sup.  Ct.  174,  46  L.  R.  A.  (N. 
S.)  203;  United  States  v.  Union 
Stockyard  &  Transit  Co.  of  Chi- 
cago, 226  U.  S.  286,  57  L.  Ed.  226, 
33  Sup.  Ct.  83;  Interstate  Com- 
merce Commission  v.  Stickney, 
215  U.  S.  98,  54  L.  Ed.  112,  30 
Sup.  Ct.  66;  Louisville  &  N.  R. 
Co.  V.  Central  Stock  Yards  Co., 
212  U.  S.  132,  53  L.  Ed.  441,  29 
Sup.  Ct.  246;  Interstate  Com- 
merce Commission  v.  Chicago,  B. 
&  Q.  R.  Co.,  186  U.  S.  320,  46  L. 
Ed.  1182,  22  Sup.  Ct.  824;  Coving- 
ton Stock-Yards  Co.  v.  Keith,  139 
U.  S.  128,  35  L.  Ed.  73,  11  Sup.  Ct. 
461;  North  Pennsylvania  R.  Co. 
V.  Commercial  Nat.  Bank  of  Chi- 
cago, 123  U.  S.  727,  31  L.  Ed.  287, 
8  Sup.  Ct.  266. 

46.  United  States.  Chicago,  R. 
I.  &  P.  R.  Co.  V.  Wright.  239  U. 
S.  548,  60  L.  Ed.  431,  36  Sup.  Ct. 


185;  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  58  L.  Ed. 
591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 
109,  Ann.  Cas.  1914C  159;  St. 
Joseph  &  G.  I.  R.  Co.  v.  United 
States,  146  C.  C.  A.  397,  232  Fed. 
349;  Chicago,  M.  &  St.  P.  R.  Co. 
v.  United  States,  91  C.  C.  A.  373, 
165  Fed.  423,  20  L.  R.  A.  (N.  S.) 
473;  United  States  v.  Chicago  & 
N.  W.  Ry.  Co.,  157  Fed.  616; 
United  States  v.  St.  Louis,  I.  IM. 
&  S.  R.  Co.,  154  Fed.  516;  United 
States  V.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  149  Fed.  486;  Voelker  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  116  Fed. 
867. 

Alabama.  Atlantic  Coast  Line 
R.  Co.  V.  Jones,  9  Ala.  App.  499, 
63   So.    693. 

Arkansas.  St.  Louis  Southwes- 
tern R.  Co.  V.  Anderson,  117  Ark. 
41,  173  S.  W.  834;  St.  Louis  &  S. 
F.  R.  Co.  V.  Conarty,  106  Ark.  421. 
155  S.  W.  93;  Kansas  City  South- 
ern R.  Co.  V.  Cook,  100  Ark.  467, 
140  S.  W.  579. 

Indiana.      Chicago   &    E.    R.    Co. 

V.  Feightner,  Ind.  App.  , 

114  N.  E.  659. 

Iowa.  Bruckshaw  v.  Chicago. 
R.  I.  &  P.  R.  Co.,  173  Iowa  207. 
155  N.  W.  273. 

Kansas.  Barker  v.  Kansas  City, 
M.  &  O.  R.  Co.,  94  Kan.  176,  146 
Pac.  358;    Barker  v.  Kansas  City, 


764 


In.titrtes  to  Interstate  Employes.         [§  444 


a  Diovoment  in  interstate  commerce.*^  "But  it  is  also 
certain  that  a  particular  interstate  movement  mnst 
come  to  an  end,"  said  the  court  in  the  Knox  case,  cited, 
"and  that  the  act  may  cease  to  apply  when  the  move- 
ment ceases.  If  these  cars  had  been  billed  from  New 
York  state  to  Pitcairn,  so  that  the  journey  had  been 
defined  and  the  end  of  the  journey  had  been  determined, 
there  would  be  much  reason  in  the  contention  that  the 
interstate  movement  was  still  going  on.  On  the  other 
hand,  if  they  had  been  expressly  billed  to  Brookville  and 
Irvineton,  respectively,  it  would  not  be  easy  to  avoid 
the  conclusion  that  the  interstate  movement  had  ceased 
at  these  points,  and  that  the  movement  afterwards  was 
wholly  within  the  state.     But  the  evidence  shows  that 


M.  &  O.  R.  Co.,  88  Kan.  767,  43 
L.  R.  A.  (N.  S.)  1121,  129  Pac. 
1151. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Holloway's  Adm'r,  163  Ky. 
125,  173  S.  W.  343. 

Missouri.  Trowbridge  v.  Kan- 
sas City  &  W.  B.  Ry.  Co.,  192  Mo. 
App.  52,  179  S.  W.  777;  Hearst  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  188 
Mo.  App.  36,  173  S.  W.  86;  Thomp- 
son V.  Wabash  R.  Co.,  262  Mo.  468, 
171  S.  W.  364. 

North  Carolina.  Ingle  v.  South- 
ern R.  Co.,  167  N.  C.  636,  83  S.  E. 
744. 

North  Dakota.  Hein  v.  Great 
Northern  R.  Co.,  34  N.  D.  440,  159 
N.  W.  14. 

Pennsylvania.  Moyer  v.  Penn- 
sylvania R.  Co.,  247  Pa.  210,  93 
Atl.    282. 

Texas.      Kansas    City,    M.    &    O. 

Ry.  Co.  of  Texas  v.  Pope, Tex. 

Civ.  App.  ,  152  S.  W.  185. 

Washing-bon.  Wesseler  v.  Great 
Northern  R.  Co.,  90  Wash.  234,  155 
Pac.  1063,  157  Pac.  461. 

"It  frequently  happens  that  the 
railway  companies  load  cars  with 
livestock  or  farm  produce  in  the 


western  states,  and  carry  the 
same  to  the  eastern  markets,  and 
then  return  these  cars  without  a 
load;  but  it  cannot  be  true  that 
on  the  eastern  trip  the  provisions 
of  the  act  of  Congress  would  be 
binding  upon  the  company,  be- 
cause the  cars  were  loaded,  but 
would  not  be  binding  upon  the  re- 
turn trip,  because  the  cars  are 
empty."- — Judge  Shiras  in  Voelker 
V.  Chicago,  M.  &  St.  P.  Ry.  Co., 
siipra,  construing  the  Safety  Ap- 
pliance Act. 

In  Norfolk  &  W.  R.  Co.  v.  Com., 
93  Va.  749,  34  L.  R.  A.  105,  57 
Am.  St.  Rep.  827,  24  S.  E.  837,  the 
court  held  that  a  railroad  com- 
pany was  not  engaged  in  interstate 
commerce  while  moving  a  train  of 
empty  coal  cars  over  its  line 
from  a  point  in  Virginia  to  a 
point  in  West  Virginia;  but  this 
decision  is  erroneous. 

47.  Pennsylvania  R.  Co.  v. 
Knox,  134  C.  C.  A.  426,  218  Fed. 
748;  Louisville  '%;  N.  R.  Co.  v. 
Strange's  Adm'x  156  Ky.  439,  161 
S.  W.  239;  Fairchild  v.  Pennsyl- 
vania R.  Co.,  170  N.  Y.  App.  Div. 
135,   155  N.  Y.   Supp.  751. 


§  444]  Cakrikus  IxitKH  LiAJULiTv  Act.  7Cy7) 

Hie  cars  wei"o  not  l)iII(Ml  ;i1  all,  and  llioroforc,  as  tlio 
character  of  tlic  inovciiicnt  dcix'tidcd  on  tlio  iiiicoritra- 
dictod  testimony  of  tlie  witnesses,  we  feel  bound  oti  tliis 
record  to  accept  the  facts  as  the  witnesses  state  tlicm. 
And,  if  tliey  are  so  accei)ted,  we  cannot  avoid  tlie  con- 
clusion that  these  cars  had  finished  their  interstate 
journey  wlien  they  reached  the  first  halting  place  in 
Pennsylvania.  They  had  no  more  distant  destination; 
they  did  not  leave  New  York  with  any  other  terminus  in 
view;  they  were  then  immediately  available  for  any  use; 
in  a  word,  to  use  the  expressive  phrase  of  one  of  the 
witnesses,  they  were  'drifting,*  waiting  to  be  assigned 
for  service.  Moreover,  they  were  in  the  owner's  pos- 
session, and  he  was  in  full  control,  so  that  they  did  not 
need  to  go  further  in  order  to  be  'at  home.'  When, 
indeed,  it  may  be  asked,  would  such  cars  lose  their  inter- 
state character,  if  they  had  not  lost  it  under  the  facts 
before  us!  It  is  difficult  to  see  what  other  satisfactory 
test  can  be  applied,  for  it  is  clear  that  they  could  not 
remain  interstate  cars  indefinitely.  They  might  have 
been  sent,  to  the  repair  shop  at  the  first  halting  ])lace, 
or  have  actually  been  used  to  carry  freight  between 
Pennsylvania  points,  and  in  either  event  it  could  not  be 
denied  that  their  interstate  character  had  ceased.  Be- 
ing bound  nowhere,  we  think  they  became  domestic 
cars  after  the  owner  had  them  in  his  possession  and  un- 
der his  control  at  the  first  appropriate  distributing 
])oint  within  the  state.  If  the  end  of  a  journey  has  been 
defined,  that  presents  one  situation;  if  in  fact  the  end 
has  not  been  expressly  detennined,  the  law  must  deter- 
mine it  in  accordance  with  what  is  reasonable  and  just. 
In  the  Zachary  case,  there  was  no  such  evidence  as  is 
now  before  us;  the  court  found  it  to  be  a  reasonable 
inference  that  the  cars  then  in  question  were  in  the  proc- 
ess of  being  'carried  forward  as  a  part  of  a. through 
movement  of  interstate  commerce.'  "  "It  is  entirely 
clear  that  taking  the  road  engine  from  Pliillipsburg, 
Kansas,  to  Council  Bluff's,  Iowa,  was  an  act  of  interstate 
commerce,  and  that  the  intestate,  while  particii>ating  in 
that  act,  was  employed  in  such  commerce.  That  the 
engine  was  not   in   commercial   use   but   merely   on   the 


766 


Injuries  to  Interstate  Employes.         [^  444 


way  to  a  repair  shop  is  immaterial.  It  was  being  taken 
from  one  State  to  another  and  this  was  the  true  test  of 
whether  it  was  movin":  in  interstate  commerce."**' 

§  445.    Transportation  from  Point  to  Point  in  One 
State  Passing  Through  Another  State  in  Transit.     All 

common  carriers  are  subject  to  regulation  as  to  their 
liabilities  to  emploj'es  for  injuries.  Those  operating 
exclusively  within  a  state  are  subject  to  the  laws  of  the 
state;  those  operating  among  the  states  are  subject  to 
federal  control.  Formerly,  a.  few  courts  held  that  the 
transportation  of  commodities  by  railroad  between  two 
points  in  the  same  state  which,  in  transit,  passed  over  a 
portion  of  another  state,  constituted  intrastate  com- 
merce, and,  hence,  was  under  the  control  of  the  state.*" 
But  to  bring  the  transportation  of  a  common  carrier 
within  the  control  of  a  state  as  a  part  of  its  domestic 
commerce,  the  commodity  transported  must  be,  during 
the  entire  journey,  under  the  exclusive  jurisdiction  of 
that  state. ^'^  Hence,  transportation  between  points  with- 
in a  single  state  over  a  route  partly  outside  of  the 
state,  constitutes  interstate  commerce.  Carriers  en- 
gaged therein  are,  therefore,  under  the  exclusive  con- 
trol of  the  national  Employers'  Liability  Act  in  so  far 
as  their  liabilities  for  injuries  arising  in  interstate  com- 
merce are  concerned." 


48.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Wright,  239  U.  S.  548,  60  L.  Ed. 
431,  36  Sup.  Ct.  185. 

49.  Campbell  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  86  Iowa  587,  17  L. 
R.  A.  443,  53  N.  W.  351;  State  v. 
Seagraves,  111  Mo.  App.  353,  85  S. 
W.  925;  Seawell  v.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.,  119  Mo.  222,  24 
S.  W.  1002;  Leavell  v.  Western 
U.  Tel.  Co.,  116  N.  C.  211,  27  L.  R. 
A.  843,  47  Am.  St.  Rep.  798,  21  S. 
E.  391;  Railroad  Com'rs  v.  West- 
ern U.  Tel.  Co.,  113  N.  C.  213,  22 
L.  R.  A.  750,  18  S.  E.  389;  West- 
ern U.  Tel.  Co.  V.  Hughes,  104  Va. 
240,  51  S.  E.  225. 


50.  Hanley  v.  Kansas  City 
Southern  R.  Co.,  187  U.  S.  617, 
47  L.  Ed.  333,  23  Sup.  Ct.  214; 
Lord  V.  Goodall,  Nelson  &  Perkins 
Steamship  Co.,  102  U.  S.  541,  26 
L.  Ed.  224;  Pacific  Coast  Steam- 
Ship  Co.  V.  Board  Railroad  Com'rs, 
18  Fed.  10;  State  v.  Chicago,  St. 
P.,  M.  &  O.  Ry.  Co.,  40  Minn.  267, 
3  L.  R.  A.  2:38,  12  Am.  St.  Rep.  730, 
41  N.   W.   1047. 

51.  United  States.  United 
States  V.  Erie  R.  Co.,  166  Fed.  352; 
United  States  v.  Chicago  Great 
Western  Ry.  Co.,  162  Fed.  775; 
United  States  v.  Delaware,  L.  & 
W.  R.  Co.,  152  Fed.  269. 


§  446] 


Carkiekh  T'ndkk  Liability  Act. 


767 


§  446.  When  Reshipment  from  Point  of  Delivery 
Changes  Interstate  Character  of  Traffic.  Wlic^n  a  sliiij- 
iiK'iit  I'ruiii  point  A  in  one  state  to  point  B  in  anotlier 
state,  is  delivered  to  and  accepted  by  the  consignee  at 
B  and  the  consignee  thereafter  reships  such  a  com- 
modity from  B  to  C  in  the  same  state — tlie  line  between 
the  two  points  being  wholly  within  tlio  one  state — the 
last  shipment  is  an  intrastate  one  and  the  carrier,  in 
hauling  it  between  B  and  C  is  not  engaged  in  interstate 
commerce.  For  the  interstate  shipment  under  such  con- 
ditions w^as  concluded  and  determined  by  a  final  deliv- 
ery at  B,  the  place  intended  by  the  shipper  and  carrier 
for  final  delivery." 


Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Spriggs,  113  Ark.  118. 
167  S.  W.  96;  St.  Louis  &  S.  F.  R. 
Co.  V.  State,  87  Ark.  562,  113  S. 
W.  203. 

California.  Cowden  v.  Pacific 
Coast  S.  S.  Co.,  94  Cal.  470,  18  L. 
R.  A.  221,  28  Am.  St.  Rep.  142, 
29  Pac.  873. 

Idaho.  Crescent  Brewing  Co.  v. 
Oregon  Short  Line  R.  Co.,  24  Ida- 
ho 106,  132  Pac.   975. 

Kansas.  Leibengood  v.  Missou- 
ri, K.  &  T.  R.  Co.,  83  Kan.  25, 
28  L.  R.  A.  (N.  S.)  985,  109  Pac. 
988;  Patterson  v.  Missouri  Pac. 
R.  Co.,  77  Kan.  236,  15  L.  R.  A. 
(N.  S.)  733,  94  Pac.  138. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  V.  Goode,  155  Ky.  153, 
159  S.  W.  695;  Louisville  &  N.  R. 
Co.  V.  Allen,  152  Ky.  145,  153  S. 
W.  198. 

Maryland.  State  v.  Cumberland 
&  P.  R.  Co.,  105  Md.  478,  66  Atl. 
458. 

Hardwick  Farmers' 
V.  Chicago,  R.  1.  & 
P.  R.  Co.,  110  Minn.  25,  19  Ann. 
Cas.  1088,  124  N.  W.  819. 

Missouri.     Bowles  v.  Quincy,  O. 

&  K.  C.  R.  Co., Mo.  App. , 

187  S.  W.  131;    Howard  v.  Chicago, 


Minnesota. 
Elevator   Co. 


R.  I.  &  P.  Ry.  Co.,  Mo.  App. 

,    184    S.    W.    906;     Potter    v. 

Kansas  City  Southern  R.  Co.,  187 
Mo.  App.  56,  172  S.  W.  1153; 
Deardorf  v.  Chicago,  B.  &  Q.  R. 
Co.,  263  Mo.  65,  172  S.  W.  333; 
Mires  v.  St.  Louis  &  S.  F.  R.  Co., 
134  Mo.  App.  379,  114  S.  W.  1052. 

Oklahoma.     Western  U.  Tel.  Co. 

V.   Kaufman,  Okla.  ,  162 

Pac.  708. 

Texas.     Wichita  Falls  &  W.  Ry. 

Co.  of  Texas  v.  Asher,  Tex. 

Civ.  App.  ,  171  S.  W.  1114. 

52.  United  States.  Lehigh  Val- 
ley R.  Co.  V.  Barlow,  244  U.  S. 
183,  61  L.  Ed.  1070,  37  Sup.  Ct. 
515;  Chicago,  B.  &  Q.  R.  Co.  v. 
Harrington,  241  U.  S.  177,  60 
L.  Ed.  941,  36  Sup.  Ct.  517;  Penn- 
sylvania R.  Co.  V.  Knox,  134  C.  C. 
A.  426,  218  Fed.  748;  Oregon  R. 
&  Nav.  Co.  V.  Campbell,  ISO  Fed. 
253. 

Arizona.     Southern   Pac.   Co.   v. 

State,    Ariz. ,    165    Pac. 

303. 

Indiana.     Chicago  &  E.  R.  Co.  v. 

Feightner,    Ind.    App. , 

114   N.  E.   65U. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Meador's  Adm'r,  176  Ky. 
765,    197    S.   W.    440. 


7'6S  K^JURiES  TO  Interstate  Employes.         [§  446 

For  instaDco,  a  car  of  corn  was  carried  upon  a  bill 
of  lading  from  Hudson,  S.  Dak.,  to  Texarkana,  Tex., 
and  five  days  afterwards  it  was  reshipped  from  Texar- 
kana to  Goldtliwaite,  both  points  being  in  the  state  of 
Texas.  It  was  sought  to  hold  the  railroad  company 
liable  for  violation  of  the  regulations  of  the  state  rail- 
road commission  applicable  to  intrastate  carriers  in  the 
state  of  Texas.  On  the  other  hand  the  railroad  company 
contended  that  the  shipment  was  interstate  from  Hudson 
to  Goldthwaite.  The  court  held  that  the  shipment  from 
Texarkana  to  Goldthwaite  was  an  intrastate  shipment 
unaffected  by  the  fact  that  the  shipper  intended  to  re- 
ship  the  corn  from  Texarkana  to  Goldthwaite,  for  the 
corn  had  been  carried  to  Texarkana  upon  a  contract 
for  interstate  shipment  and  the  reshipment  five  days 
later  upon  a  new  contract  was  an  independent  intra- 
state shipment. ^^ 

A  close  case  on  the  facts  in  which  the  same  prin- 
ciple was  applied,  was  decided  by  the  Kentucky  Court 
of  Appeals.  A  train  consisting  of  19  empty  coal  cars 
was  brought  into  Eussellville,  Ky.,  some  of  the  cars 
hiaving  been  brought  from  Tennessee.  The  conductor 
of  the  train  in  which  the  cars  were  brought  to  Eussell- 
ville, had  been  directed  to  take  the  cars  to  Eussellville 
and  no  further  orders  had  been  given  for  their  destina- 
tion and  no  one  had  orders  to  carry  them  further.  After 
reaching  Eussellville  a  new  order  was  issued  directing 
that  they  be  taken  to  another  point  in  the  same  state. 
Decedent  was  a  flagman  on  the  train  leaving  Eussell- 
ville and  each  car  in  the  train,  including  the  coal  cars, 
was  destined  to  another  point  within  the  same  state. 
The  court  held  that  the  interstate  journey  of  the  cars 
ended  at  Eussellville  and  that,   after  leaving  Eussell- 

Mississippi.      Batesville    South-  App.   269,  1G4   S.  W.   132. 

western  R.  Co.  v.  Minis,  111  Miss.  Texas.      Missouri,    K.    &    T.   Ry. 

574,  71  So.  827.  Co.    of   Texas   v.    Pace,   Tex. 

Missouri.     State  ex  rel.  Cliicago,       Civ.    App.    ,    184    S.    W.    1051. 

M.  &  St.  P.  R.  Co.  V.  Public  Serv-  53.     Gulf,  C.  &  S.  F.  R.  Co.  v. 

ice   Commission   of   Missouri,   269  State,  204  U.  S.  403,  51  L.  Ed.  540, 

Mo.  63,  189  S.  W.  377;     Smitli   v.  27  Sup.  Ct.  360. 
Gulf,   C.   &  S.   F.  R.   Co.,   177   Mo. 


'^  44G]  Cariuers  Under  Liability  Act.  769 

ville,  the  train  was  movinj^  solely  in  intrastate  commerce 
and  that  no  action  for  d«uKlont's  death  could  be  main- 
tained under  tlie  federal  statute.  The  court  properly 
assumed  that  liauling  even  enii)ty  coal  cars  from  a  point 
in  one  state  to  a  poiiit  in  another  constituted  interstate 
commerce,  hut  in  view  of  the  controlling  fact  that  the 
cars  originating  in  Tennessee  were  only  destined  to  Rus- 
sellville.  and  that  at  the  latter  point  orders  were  issued 
for  their  further  destination,  which  was  in  the  same 
state,  the  interstate  journey  ended  at  Russellville.^* 

In  another  case  it  appeared  that  a  coal  company 
shipped  cars  of  coal  over  certain  railroads  from  points 
in  Illinois  to  Davenport,  la.,  and  there  reshipped  the 
cars  of  coal  over  another  railroad  to  points  in  Iowa. 
In  a  suit  to  have  declared  invalid  an  order  of  the  Iowa 
commission,  it  was  held  that  the  shipments  from  Daven- 
port to  points  in  Iowa  were  intrastate.  Justice  Hughes, 
speaking  for  the  United  States  Supreme  Court  in  that 
case,  said:  "It  is  undoubtedly  true  that  the  question 
whether  commerce  is  interstate  or  intrastate  must  be 
determined  by  the  essential  character  of  the  commerce 
and  not  by  mere  billing  or  forms  of  contract.  Ohio 
Railroad  Commission  v.  Worthington,  225  U.  S.  101; 
Texas  &  N.  0.  R.  Co.  v.  Sabine  Tram  Co.,  227  U.  S-  111; 
Railroad  Commission  of  Louisiana  v.  Texas  &  Pacific 
Ry.  Co.,  229  U.  S.  336.  But  the  fact  that  commodities 
received  on  interstate  shipments  are  reshipped  by  the 
consignee,  in  the  cars  in  which  they  are  received,  to 
other  points  of  destination,  does  not  necessarily  estab- 
lish a  continuity  of  movement  or  prevent  the  reship- 
ment  to  a  ]-)oint  within  the  same  state  from  having  an 
independent  and  intrastate  character.  Gulf,  C.  &  S.  F. 
Ry.  Co.  V.  Texas,  204  U.  S.  403;  Ohio  Railroad  Com- 
mission V.  Woi-thington,  225  U.  S.  101,  109;  Texas  &  N. 
0.  R.  R.  Co.,  V.  Sabine  Tram  Co.,  227  U.  S.  Ill,  129,  130. 
The  question  is  with  respect  to  the  nature  of  the  actual 
movement  in  the  particular  case;  and  we  are  unable  to 

54.  Louisville    &    N.    R.    Co.    v.       R.  Co.  v.  Knox.  134  C.  C.  A.  426, 
Strange's  Adm'x,  '150  Ky.  439,  161       218  Fed.  748. 
S.  W.  239.    Accord:     Pennsylvania 

1    Control    Caniei-9    -la 


770 


Injuries  to  Interstate  Employes,         [§  446 


say  upon  this  record  tliat  the  state  court  has  improperly 
characterized  the  traflfic  iu  question  here.  In  the  light 
of  its  decision,  the  order  of  the  commission  must  be 
taken  as  referring  solely  to  intrastate  transportation 
originating  at  Davenport.  "^^ 

§  447.     When  Reshipment  from  Point  of  Delivery 
Does  not  Change  Interstate  Character  of  Traffic.     But 

where  a  shipper  intends  from  tlie  beginning  that  the 
transportation  shall  be  continued  beyond  the  destina- 
tion originally  indicated,  then  the  interstate  transporta- 
tion continues,  and  a  rebilling  or  reshipment  enroute 
does  not,  of  itself,  break  the  continuity  of  the  movement 
or  require  that  any  part  of  the  transportation  be  classi- 
fied differently  from  the  remainder.^'' 


55.  Chicago,  M.  &  St.  P.  R.  Co. 
V.  Iowa,  233  U.  S.  334,  58  L.  Ed. 
988,  34  Sup.  Ct.  592. 

56.  United  States.  Western 
Oil  Refining  Co.  v.  Lips- 
comb, 244  U.  S.  346,  61  L. 
Ed.  1181,  37  Slip.  Ct.  623;  West- 
ern Transit  Co.  v.  A.  C.  Leslie  & 
Co.,  242  U.  S.  448,  61  L.  Ed.  423, 
37  Sup.  Ct.  133;  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Harold,  241  U.  S.  371, 
60  L.  Ed.  1050,  36  Sup.  Ct.  665; 
South  Covington  &  C.  St.  R.  Co. 
V.  City  of  Covington,  235  U.  S. 
537,  59  L.  Ed.  350,  35  Sup.  Ct. 
158;  Railroad  Commission  of 
Louisiana  v.  Texas  &  P.  R.  Co., 
229  U.  S.  336,  57  L.  Ed.  1215,  33 
Sup.  Ct.  837;  Texas  &  N.  O.  R. 
Co.  V.  Sabine  Tram  Co.,  227  U.  S. 
Ill,  57  L.  Ed.  442,  33  Sup.  Ct. 
229;  Railroad  Commission  of 
Ohio  V.  Worthington,  225  U.  S.  101, 
56  L.  Ed.  1004,  32  Sup.  Ct.  653; 
Southern  Pac.  Terminal  Co.  v.  In- 
terstate Commerce  Commission, 
219  U.  S.  498,  55  L.  Ed.  310,  31 
Sup.  Ct.  279;  McNeill  v.  South- 
ern R.  Co.,  202  U.  S.  543,  50  L. 
Ed.    1142,   26    Sup.    Ct.    722;     Ala- 


bama Great  Southern  R.  Co.  v. 
George  H.  McFadden  &  Bros.,  232 
Fed.  1000;  Belt  R.  Co.  of  Chicago 
V.  United  States,  93  C.  C.  A.  666, 
168  Fed.  542,  22  L.  R.  A.  (N.  S.) 
582;  Chicago,  M.  &  St.  P.  Ry.  Co. 
V.  Voelker,  65  C.  C.  A.  226,  129 
Fed.  522,  70  L.  R.  A.  264;  Kanotex 
Refining  Co.  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.,  34  I.  C.  C.  271. 

Kansas.  Missouri,  K.  &  T.  R. 
Co.  V.  New  Era  Milling  Co.,  80 
Kan.  141,  101  Pac.  1011. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Meador's  Adm'r,  176  Ky. 
765,  197  S.  W.  440;  Howard  & 
Callahan  v.  Illinois  Cent.  R.  Co., 
161  Ky.  783,  171  S.  W.  442. 

Missouri.    Reynolds  v.  St.  Louis 

Southwestern    Ry.    Co.,    Mo. 

App.  ,  190  S.  W.  423;    Werner 

Saw  Mill  Co.  v.  Kansas  City 
Southern  R.  Co.,  194  Mo.  App.  618, 
18G  S.  W.  1118. 

Oregon.  Baldwin  Sheep  &  Land 
Co.  V.  Columbia  R.  Co.,  58  Ore. 
285,  114  Pac.  469. 

Rhode  Island.  Glenlyon  Dye 
Works  V.  Interstate  Exp.  Co.,  36 
R.  I.  558,  91  Atl.  5. 


'5'  447]  Carriers  Under  Liability  Act.  771 

A  shipper  consigned  a  commodity  from  St.  Louis, 
Missouri,  to  Loadville,  Colo.  It  was  transported  over 
one  railroad  from  St.  Tjouis  to  Pueblo,  Colo.,  the  receiv- 
ing carrier  giving  a  receipt  showing  that  the  commodity 
was  to  be  delivered  to  the  consignee  at  Leadville  via 
another  railroad.  No  through  bill  of  lading  was  issued 
and  no  llivougli  loute  had  Ix'cn  entablislu'd.  The  first 
company  issued  a  bill  of  lading  for  the  shipment  from 
St.  TiOuis  to  Pueblo  at  a  local  rate.  The  car  was  there 
delivered  to  another  railroad  company  at  a  local  rate 
which  company  named  the  first  railroad  company  as 
consignor  to  the  consignee.  The  freight  charges  were  al- 
ways collected  either  at  point  of  origin  or  at  destination 
and  divided  according  to  the  local  rates  of  each.  It  was 
held  by  the  United  States  Supreme  Court  that  while  there 
was  no  through  rate  or  through  route,  there  was  in  fact 
a  through  shipment  from  St.  Louis,  Mo.,  to  Leadville, 
Colo.,  and  the  interstate  character  of  the  shipment 
could  not  be  destroyed  by  ignoring  the  points  of  origin 
and  destination,  separating  the  rate  into  its  component 
parts  and  by  charging  local  rates  and  issuing  local  way 
bills  and  thus  attemi)ting  to  convert  an  interstate  ship- 
ment into  an  intrastate  shipment.  The  court  quoting 
from  a  former  decision,  said:  "When  goods  shipped 
from  a  point  in  one  state  to  a  point  in  another,  are  re- 
ceived in  transit  by  a  state  common  carrier,  under  a 
conventional  division  of  the  charges,  such  carrier  must 
be  deemed  to  have  subjected  its  road  to  an  arrange- 
ment for  a  continuous  carriage  or  shipment  within  the 
meaning  of  the  act  to  regulate  commerce.""'" 

In  another  case  shippers  delivered  to  a  carrier  at 
certain  stations  in  the  state  of  Louisiana  eighteen  car- 
loads of  logs  and  staves  to  be  transported  by  railway 
from  said  stations  to  Alexandria,  La.,  and  there  deliv- 

Texas.  Gulf,  C.  &  S.  F.  Ry.  Co.  1200. 

V.  IMathis,  Tex.  Civ.  App.  — ,  Wisconsin.            Duluth-Superior 

194   S.  W.  1135;     Galveston,  H.  &  Milling    Co.    v.    Northern    Pac.    R. 

S.  A.  R.  Co.  v.  Wood-Hagenbarth  Co.,  152  Wis.  528,  140  N.  W.  1105. 

Cattle    Co.,    105    Tex.    178,    14U    S.  57.     Baer  Bros.  v.  Denver  &  R. 

W.  538;    Texas  &  P.  R.  Co.  v.  Tay-  G.  R.  Co.,  233  U.  S.  479,  58  L.  Ed. 

lor,  103  Tex.  367,  126  S.  W.  1117,  1055,  34  Sup.  Ct.  641. 


772  Injuries  to  Interstate  Employes.         [^  447 

ered  to  another  railroad  company  which  transported 
them  to  New  Orleans,  La.,  where  they  were  unloaded 
from  the  cars,  put  on  board  ship  and  exported  to  for- 
eigTi  countries.  The  bills  of  lading  in  each  instance 
provided  for  the  delivery  of  the  freight  from  the  initial 
point  to  New  Orleans,  there  to  be  delivered  to  the  ship- 
per or  consignee's  order.  The  consignee  resided  at 
New  Orleans  and  was  a  broker  engaged  in  negotiating 
for  foreign  shipments  and  attending  to  shipments  for 
consignors  in  the  United  States.  But  notwithstanding 
the  bills  of  lading  the  staves  and  logs  were  intended  by 
the  shippers  to  be  exported  to  foreign  countries  and 
were  treated  by  both  shippers  and  carriers  accordingly, 
the  shippers  always  holding  the  cars  on  the  railroad 
track  at  New  Orleans  until  they  could  accumulate  cargo 
to  till  their  export  orders  and  arrange  for  transportation. 
The  railroad  company  allowed  shippers  twenty  days' 
time  for  delivery,  as  in  the  case  of  all  export  shipments, 
without  charging  demurrage  which  the  company  would 
have  had  the  right  to  charge  after  the  expiration  of 
four  days  if  the  shipments  had  been  considered  and 
treated  as  purely  intrastate.  The  sole  question  before 
the  United  States  Supreme  Court  was  whether  the  ship- 
ments were  foreign  or  intrastate  commerce  while  moving 
through  Louisiana.  The  court  held  that  they  were  for- 
eign shipments,  and  that  the  cargo  took  that  character 
when  it  was  actually  started  in  the  course  of  transporta- 
tion to  a  foreign  country,  although  it  was  transported 
within  the  state  under  local  bills  of  lading.  The  staves 
and  logs  were  intended  by  the  shippers  to  be  exported 
to  foreign  countries  and  there  was  no  interruption  of 
their  transportation  to  their  destination  except  what 
was  necessary  for  transshipment  at  New  Orleans.^* 

§  448.  Proof  that  Injured  Servant  is  Employed  in 
Interstate  Commerce  Sufficient  to  show  that  the  Railroad 
is  so  Engaged.  To  permit  an  employe  to  recover  under 
the  federal  act,  it  must  be  shown  that  at  the  time  of  the 

58.       Railroad     Commission     of      U.  S.  336,  57  L.  Ed.  1215,  33  Sup. 
Louisiana  v.  Texas  &  P.  R.  Co.,  229       Ct.  837. 


<^  448]  Carriebs  Under  Liabiijty  Act.  773 

accident,   first,   tlio   carrier  was   eii^a^'ed    in   interstate 
commerce,   and,   second,   tliat  the   injured    servant   was 
employed  by  it  in  such  commerce.'^'    Since  tlie  act  of  a 
servant  within  the  scope  of  his  employment  is  in  le,i?al 
contemi)lation  the  act  of  the  master,  if  it  is  shown  tliat 
the  injured  employe  at  the   time   of  the  accident  was 
engaged  in  interstate  conmiei-ce  hy  virtue  of  his  employ- 
ment on  the   i-ailroad,  then  it  necessarily  follows   that 
the  carrier  is  so  engaged.""    Hence  in  an  action  under 
the   act,   evidence  that  the   employe   was  emploved   in 
such  commerce  at  the  time  of  the 'accident  is  sufficient 
to  show  that  the  carrier  was  so  engaged.    But  the  con- 
verse of  the  proposition   stated  is  not  true,  for  proof 
that  the  carrier  at  the  time  of  the  injury  was  engaged 
generally  in  interstate  commerce,  does  not  prove  that 
the  injured   servant  was  also  employed  by  it  in   such 
commerce  unless  the  specie  of  evidence  introduced  to 
show  the  carrier  was  so  engaged,  is  the  act  and  work 
of  the  servant  when  injured.    Since,  therefore^  by  virtue 
of  a  well-known  principle  in  the  law  of  agency  the  act 
of  servant  is  the  act  of  master,  decisions  of  the  courts 
construing  when  an  employe  is  engaged  in  interstate 
commerce,    are    quite   applicable    under    questions    dis- 
cussed  in   this   chapter   and    opinions  there   cited    are 
relevant  here."^ 

59.      United    States.      Lucchetti  Oklahoma.        Atchison,    T.    &    S. 

V.  Philadelphia  &  R.  Ry.  Co.,  233  F^.  R.  Co.  v.  Pitts,  44  Okla.  604,  9 

Fed.  137;    Erie  R.  Co.  v.  Jacobus,  N.  C.  C.  A.   545,  145  Pac    1148* 

137    C:    C.    A.    151,    221    Fed.    335;  Pennsylvania.  Hogarty  v.  Phila- 

Bravis  v.  Chicago,  M.  &  St.  P.  R.  delphia  &  R.  R.  Co.,  245  Pa    443 

Co.,  133  C.  C.  A.  228,  217  Fed.  234.  91  Atl.  854. 

Louisiana.     Gordon   v.   New   Or-  Utah.      Grow    v.    Oregon    Short 

^"!,?'!f  ,^"?'!T"  ""•   """"  '''       ^^^^   ^-    C°'    ''    Utah    160,    Ann. 

M,      '  ^       ■  Tn-      •         C^«-  191-5B  481,  138  Pac.  398. 

Minnesota.      Hurley    v.    Illinois  -.tt    ^  ^.     ■   . 

Cent.  R.  Co.,  133  Minn.  101.  157  N.  ^''^  '^^'^''^^-     ^'^^'««   ^-   0^'« 

W.   1005.  Valley  Elec.  R.  Co.,  78  W.  Va.  131. 

Mississippi.     New  Orleans.  M.  &  ^^  ^-  ^-  ^^^• 
C.  R.  Co.  V.  Jones,  111  IMiss.  852,  ^*^-     GrybowskI   v.   Erie  R.   Co., 

72   So.  681.  88  N.  J.  L.  1,  95  Atl.  764. 

Montana.      Alexander    v.    Great  61.     Colasurdo  v.  Central  R.  R. 

Northern  R.  Co.,  51  Mont.  5G5,  154  of  New  Jersey,  ISO  Fed.  832.  aff'd 

P^c-  91^-  in  113  C.  C.  A.  379,  192  Fed.  901. 


CHAPTER  XXIII. 

Employes  Engaged  in  Interstate  Commerce — -General 

Principles. 

Sec.  449.  Statute  Includes  Only  Employes  Injured  While  Engaged  in 
Interstate   Commerce. 

Sec.  450.  Employment  in  Interstate  Commerce  not  Restricted  or 
Limited  to  Actual  Transportation  from  One  State  to 
Another. 

Sec.  451.  Same  Act  May  Constitute  Interstate  Employment  in  One 
Relation  and  not  in  Another. 

Sec.  452.  Criterion  Adopted  by  United  States  Supreme  Court  in  De- 
termining Employment  in  Interstate  Commerce. 

Sec.  453.     Employes  Presumed  to  be  Engaged  in  Intrastate  Commerce. 

Sec.  454.  Prior  or  Subsequent  Employment  Immaterial  in  Deter- 
mining Applicability  of  Federal  Statute. 

Sec.  455.  Servants  Employed  in  Both  Intrastate  and  Interstate  Com- 
merce. 

Sec.  456.  Employes  on  Premises  of  Railroad  Company  Going  to  or 
from  Work. 

Sec.  457.  Status  of  Employes  Injured  While  Going  to  or  from  Day's 
Work  Partly  in  Interstate  and  Partly  in  State  Com- 
merce. 

Sec.  458.  Employer  not  Liable  to  Employe  Injured  After  Day's  Work 
is  Over — Sleeping  in  Cars. 

Sec.  459.  Effect  of  Temporary  Cessation  in  or  Abandonment  of  Work 
in  Interstate  Commerce. 

Sec.  4G0.  Employes  of  Private  Carriers  Transporting  their  Own  Prop- 
erty not  Subject  to  Statute. 

Sec.  461.  When  Questions  of  Employment  in  Interstate  Commerce 
should  be  Submitted  to  Jury. 

Sec.  462.  Decisions  Construing  Federal  Safety  Appliance  Act  not  al- 
ways Applicable  in  Construing  Employers'  Liability  Act. 

Sec.  463.  Instances  where  Employes  were  Engaged  in  Interstate  Com- 
merce but  Erroneously  Held  to  Have  Been  Engaged  in  In- 
trastate Commerce. 

Sec.  464.  Instances  Where  Employes  Were  Engaged  Exclusively  in 
Intrastate  Commerce  but  Erroneously  Held  to  have  been 
Engaged  in  Interstate  Commerce. 

Sec.  465.  Burden  of  Proving  Interstate  Employment  is  Upon  the 
Plaintiff. 

Sec.  466.  Burden  of  Proving  Interstate  Employment  upon  Defend- 
ant, When. 

§  449.     Statute   Includes   Only   Employes    Injured 
While  Engaged  in  Interstate  Commerce.     The  statute 

(774) 


}f 


§  449J 


Employes  Subject  to  Act. 


Ill 


provides  that  a  common  earner  by  rail,  wliile  engaging,' 
in  interstate  commerce,  is  liable  for  injuries  or  death 
to  an  employe,  due  to  negligence,  "while  lie  is  employed 
by  such  carrier  in  such  commerce."  The  employe  must 
have  been  at  the  time  of  the  injury  engaged  in  inter- 
state commerce.'     Fre(iuently    a    troublesome    question 


1.  United  States.  Erie  R.  Co. 
V.  Welsh,  242  U.  S.  303,  61  L. 
Ed.  319,  37  Sup.  Ct.  116;  lUiuois 
Cent.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  58  L.  Ed.  1051,  34  Sup.  Ct. 
646,  10  N.  C.  C.  A.  153,  Ann.  Cas. 
1914C  163;  Hudson  &  M.  R.  Co. 
V.  lorio,  152  C.  C.  A.  641,  239  Fed. 
855;  Erie  R.  Co.  v.  Krysienski, 
151  C.  C.  A.  218,  238  Fed.  142; 
Kelly  V.  Pennsylvania  R.  Co.,  151 
C.  C.  A.  171,  238  Fed.  95;  Coal  & 
Coke  Co.  V.  Deal,  145  C.  C.  A.  490, 
231  Fed.  604;  Erie  R.  Co.  v.  Van 
Buskirk,  143  C.  C.  A.  71,  228  Fed. 
489;  Erie  R.  Co.  v.  .Tacobus,  137 
C.  C.  A.  151,  221  Fed.  335. 

Alabama.     Mathews  v.  Alabama 

Great  Southern  R.  Co., Ala. 

,  76  So.  17;  Loveless  v.  Louis- 
ville &  N.  R.  Co.,  Ala.  , 

75   So.  7;    Louisville  &  N.  R.  Co. 

V.  Blankenship,  Ala.  ,  74 

So.  960;    Western  Ry.  of  Alabama 

V.    Mays,    Ala.    ,    72    So. 

641:  Louisville  &  N.  R.  Co.  v.  Car- 
ter, 195  Ala.  382,  Ann.  Cas.  1917E 
292,  70  So.  655:  Southern  R.  Co. 
V.  Poters,  194  Ala.  94,  69  So.  611; 
Ex  parte  Atlantic  Coast  Line  R. 
Co.,  190  Ala.  132,  67  So.  256. 

Arkansas.  Long  v.  Biddle,  124 
Ark.  127,  186  S.  W.  601. 

California.  Southern  Pac.  Co.  v. 
Industrial  Accident  Commission 
of  California,  174  Cal.  8,  161  Pac. 
1139. 

Colorado.      Denver    &    R.    G.    R. 

Co.  v.  Wilson,  Colo.  ,  103 

Pac.  857. 

Georgia.      Hardy   v,    Atlantic    & 


W.   P.   R.  Co.,  Ga.  App.  

93  S.  E.  18. 

Illinois.  Patry  v.  Chicago  &  W 
I.  K.  (,'u.,  265  111.  310,  lOU  N.  E 
843. 

Indiana.  Chicago  &  E.  R.  Co.  v 
Feightner,  —  Ind.  App.  — ,  114  N 
E.   659;     Cincinnati,   H.   &  D.   Ry 

Co.  V.  Gross,  Ind.  App.  

111  N.  E.  653. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Netherton,  175  Ky.  159,  193 
S.  W.  1035;  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  V.  Hansford,  173  Ky. 
126,  190  S.  W.  690;  Chesapeake  & 
0.  R.  Co.  v.  Harmon's  Adm'r,  173 
Ky.  1,  189  S.  W.  1135;  Schaeffer  v. 
Illinois  Cent.  R.  Co.,  172  Ky.  337, 
189  S.  W.  237;  Norfolk  &  W.  R. 
Co.  v.  Short's  Adm'r,  171  Ky.  647, 
188  S.  W.  786;  Illinois,  Cent.  R. 
Co.  V.  Kelly,  167  Ky.  745,  181  S. 
W.  375. 

Louisiana.     Gordon   v.  New   Or- 
leans Great  Northern  R.  Co.,  135 
La.   137,  64  So.  1014. 
Maryland.    Washington.  B.  &  A. 

Elec.   R.   Co.   V.   Owens,  Md. 

,   101    Atl.    532. 

Massachusetts.  Lynch  v.  Bos- 
ton &  M.  R.  R.,  Mass.  , 

116  N.  E.  401;  Corbett  v.  Boston 
&  M.  R.  R.,  219  Mass.  351,  9  N. 
C.  C.  A.  691,  107  N.  E.  60. 

Minnesota.  Hurley  v.  Illinois 
Cent.  R.  Co.,  133  Minn.  101,  157 
N.  W.  1005. 

Mississippi.     Yazoo   &   M.   V.   R. 

Co.  V.  Houston, Miss.  ,  75 

So.  690. 


776 


Injuries  to  Interstate  Employes.         [^  449 


arises  as  to  whether  a  servant  is  emploj^ed  in  interstate 
or  intrastate  commerce  at  the  time  of  the  accident,  for, 
if  the  former,  the  remedy,  if  any,  given  by  the  federal 
act  is  exclusive;  while  if  the  latter,  the  state  law  alone 
furnishes  the  remedy,  even  though  at  the  time  the  car- 
rier itself  was  engaged  in  interstate  commerce.  Both 
must  be  so  engaged  to  render  the  federal  act  appli- 
cable.^ 


Montana.  McBain  v.  Northern 
Pac.  R.  Co.,  52  Mont.  578,  160  Pac. 
654. 

New  York.  Saxon  v.  Erie  R. 
Co.,  221  N.  Y.  179,  116  N.  E.  983; 
Shanks  v.  Delaware,  L.  &  W.  R. 
Co.,  214  N.  Y.  413,  Ann.  Cas. 
1916E  467,  108  N.  E.  644;  Hoag 
V.  Ulster  &  D.  R.  Co.,  177  N.  Y. 
App.  Div.  .433.  164  N.  Y.  Siipp. 
529;  Knowles  v.  New  York,  N. 
H.  &  H.  R.  Co.,  177  N.  Y.  App. 
Div.  262,  164  N.  Y.  Supp.  1;  Gio- 
vio  V.  New  York  Cent.  R.  Co.,  176 
N.  Y.  App.  Div.  230,  162  N.  Y. 
Supp.  1026;  Shanks  v.  Delaware, 
L.  &  W.  R.  Co.,  163  N.  Y.  App. 
Div.  565,  148  N.  Y.  Supp.  1034; 
Norton  v.  Erie  R.  Co.,  163  N.  Y. 
App.  Div.  466,  148  N.  Y.  Supp.  769. 

North  CaroUna.  Saunders  v. 
Southern  R.  Co.,  167  N.  C.  375,  83 
S.  E.  573. 

Oklahoma.      Chicago,    R.    I.    & 

P.  R.  Co.  v.  Felder,  Okla.  — , 

155    Pac.    529. 

Texas.      Missouri,    K.    &    T.    Ry. 

Co.  of  Texas  v.  Watson,  Tex. 

Civ.  App.  ,  195  S.  W.  1177. 

Washington.  Aldread  v.  North- 
ern Pac.  R.  Co.,  93  Wash.  209,  160 
Pac.  429;  Bolch  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  90  Wash.  47,  155  Pac. 
422. 

Wisconsin.  Karras  v.  Chicago 
&  N.  W.  R.  Co.,  165  Wis.  578,  162 
N.  W.  923;  .Tacoby  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  165  Wis.  610.  161 


N.  W.  751,  164  N.  W.  88;  Graber 
V.  Duluth,  S.  S.  &  A.  R.  Co.,  159 
Wis.  414,  150  N.  W.  489;  Ruck  v 
Chicago,  M.  &  St.  P.  R.  Co,  153 
Wis.  158,  140  N.  W.  1074. 

2.  Erie  R.  Co.  v.  Winfleld,  244 
U.  S.  170,  61  L.  Ed.  1057,  37  Sup. 
Ct.  556,  14  N.  C.  C.  A.  957;  New 
York  Cent.  R.  Co.  v.  Winfield,  244 
U.  S.  147,  61  L.  Ed.  1045,  37  Sup. 
Ct.  546,  14  N.  C.  C.  A.  680,  Ann. 
Cas.  1917D  1139;  Southern  Pac. 
Co.  v.  Jensen,  244  U.  S.  205,  61  L. 
Ed.  1086,  37  Sup.  Ct.  524,  14  N. 
C.  C.  A.  597,  Ann.  Cas.  1917E  900; 
Lehigh  Valley  R.  Co.  v.  Barlow, 
244  U.  S.  183,  61  L.  Ed.  1070,  37 
Sup.  Ct.  515;  Baltimore  &  O. 
R.  Co.  V.  Branson.  242  U.  S.  623, 
61  L.  Ed.  534,  37  Sup.  Ct.  244; 
Minneapolis  &  St.  L.  R.  Co.  v. 
Nash,  242  U.  S.  619.  61  L.  Ed. 
531,  37  Sup.  Ct.  239;  Atlantic 
Coast  Line  R.  Co.  v.  Mims,  242 
U.  S.  532,  61  L.  Ed.  476,  37  Sup. 
Ct.  188;  Illinois  Cent.  R.  Co.  v. 
Williams,  242  U.  S.  462,  61  L. 
Ed.  437,  37  Sup.  Ct.  128;  Minne- 
apolis &  St.  L.  R.  Co.  V.  Winters, 
242  U.  S.  353,  61  L.  Ed.  358,  37 
Sup.  Ct.  170,  13  N.  C.  C.  A.  1127; 
Erie  R.  Co.  v.  Welsh,  242  TJ.  S. 
303,  61  L.  Ed.  319,  37  Sup.  Ct. 
116;  Baltimore  &  O.  R.  Co.  v. 
Wilson,  242  U.  S.  295,  61  L.  Ed. 
3r2,  37  Sup.  Ct.  123;  Great  North- 
ern R.  Co.  V.  Capital  Trust  Co.. 
242    U.    S.    144,   61    L.   Ed.   208,   37 


^  449] 


Employes  Subject  to  Act. 


/ 1  i 


If  the  reader  bears  in  mind  that  Congress  in  passinir 
the  act,  was  not  regulating  the  rights  and  liabilities  of 
employers  and  em])loyo.s  as  such,  but  was  primarily 
regulating  and  promoting  the  safety  of  those  engaged 
in  interstate  commerce,  and,  for  that  purpose,  incident- 
ally declared  the  riglits  and  lialfilities  of  all  railroad.^ 
and  employes  only  while  both  were  engaged  in  such 
commerce,  many  difficulties  in  the  solution  of  such  a 
question  disappear.^ 


Sup.  Ct.  41.  L.  R.  A.  1917E  1050; 
LouisviUe  &  N.  R.  Co.  v.  Parker, 
242    U.    S.    13,    61    L.    Ed.    119,    37 
Sup.  Ct.  4;     Illinois  Cent.   R.   Co. 
V.    Cousins,    241   U.    S.    641,    60   L. 
Ed.  1216,  36  Sup.  Ct.  446;    Chica- 
go, B.  &  Q.  R.  Co.  V.  Harrington, 
241   U.   S.   177,   60   L.    Ed.   941,   36 
Sup.  Ct.  517,  11  N.  C.  C.  A.  992; 
Osborne  v.  Gray,  241  U.  S.  16,  60 
L.  Ed.  865,  36  Sup.  Ct.  48G;   Sea- 
board Air  Line  Ry.  Co.  v.  Kenney, 
240   U.   S.   489,   60   L.    Ed.   762,   36 
Sup.   Ct.   458;     Kanawha  &  M.   R. 
Co.  V.  Kerse,  239  U.  S.  576,  60  L. 
Ed.  448,  36  Sup.  Ct.  174;    Shanks 
V.  Delaware,  L.  &  V/.  R.  Co.,  239 
U.  S.  556,  60  L7  Ed.  436,  36  Sup. 
Ct.   188;     Chicago,   R.   I.   &   P.   R. 
Co.   V.   Wright,   239   U.   S.   548,   60 
L.  Ed.  431,  36  Sup.  Ct.  185;    South- 
ern R.  Co.  V.  Lloyd,  239  U.  S.  496, 
60    L.   Ed.    402,    36    Sup.    Ct.    210; 
Delaware,  L.  &  W.  R.  Co.  v.  Yur- 
konis.    238    U.    S.    439,    59    L.    Ed. 
1397,  35  Sup.  Ct.  902;    New  York 
Cent.  &  H.  River  R.  Co.  v.  Carr. 
238  U.   S.  260,   59   L.   Ed.   1298,   35 
Sup.   Ct.   780;     St.   Louis,   I.   M.   & 
S.  Ky.  Co.  V.  Craft,  237  U.  S.  648, 
59  L.  Ed.  1160,  35  Sup.  Ct.  704.  9 
N.   C.   C.   A.   754;     Toledo,    St.    L. 
&  M.  R.  Co.  V.   Slavin,  236  U.   S. 
454,  58  L.  Ed.  671,  35  Sup.  Ct.  306; 
Wabash   R.   Co.   v.   Hayes,   234   U. 
S.  86,  58  L.   Ed.  1226,  34  Sup.  Ct. 
729,   6    N.   C.   C.   A.   224;     Illinois 


Cent.  R.  Co.  v.  Behrens,  233  U. 
S.  86,  58  L.  Ed.  1226,  34  Sup.  Ct. 
646,  10  N.  C.  C.  A.  153,  Ann.  Cas. 
1914C  163;  North  Carolina  R.  Co. 
V.  Zachary,  232  U.  S.  248,  58  L. 
Ed.  591,  34  Sup.  Ct,  305,  9  N.  C. 
C.  A.  109,  Ann.  Cas.  1914C  159; 
St.  Louis,  S.  F.  &  T.  Ry.  Co.  v. 
Seale,  229  U.  S.  156,  57  L.  Ed.  1129. 
33  Sup.  Ct.  651,  Ann.  Cas.  1914C 
156;  Pedersen  v.  Delaware,  L.  & 
W.  R.  Co.,  229  U.  S.  146,  57  L. 
Ed.  1125,  33  Sup.  Ct.  648,  3  N.  C. 
C.  A.  779,  Ann.  Cas.  1914C  153; 
Norfolk  &  W.  R.  Co.  v.  Earnest. 
229  U.  S.  114,  57  L.  Ed.  1096,  33 
Sup.  Ct.  654,  Ann.  Cas.  1914C 
172:  Missouri,  K.  &  T.  R.  Co.  v. 
Wulf.  226  U.  S.  570,  57  L.  Ed.  355, 
33  Sup.  Ct.  135,  Ann.  Cas.  1914B 
134;  Employers'  Liability  Cases, 
207  U.  S.  463,  52  L.  Ed.  297,  28 
Sup.  Ct.  141. 

3.  First  Employers'  Liability 
Cases,  207  U.  S.  463,  52  L.  Ed.  297. 
28  Sup.  Ct.  141,  in  which  the  Su- 
preme Court  declared  the  Federal 
Employers'  Liability  Act  of  1906 
unconstitutional:  In  re  Second 
Employers'  Liability  Cases,  223 
U.  S.  1,  56  L.  Ed.  327,  32  Sup.  Ct. 
169,  1  N.  C.  C.  A.  875.  38  L.  R.  A. 
(N.  S.)  44,  in  which  the  Federal 
Employers'  Liability  Act  of  1908 
was  held  constitutional  and  valid. 
Knowles  v.  New  York,  N.  H.  &  H. 
R.   Co.,    177   N.   Y.   App.    Div.   262. 


778  Injuries  to  Interstate  Employes.         [§  450 

§  450.  Employment  in  Interstate  Commerce  not  Re- 
stricted or  Limited  to  Actual  Transportation  from  One 
State  to  Another.  The  Federal  Act  prescribes  that  its 
provisions  shall  apply  to  all  injuries  sustained  while 
the  employe  is  engaged  in  interstate  commerce;  but 
employment  in  interstate  commerce  is  not  limited  or  re- 
stricted to  the  work  of  actually  transporting  articles 
of  commerce  from  one  state  to  another.*  Transporta- 
tion or  caiTiage  is  an  essential  element  of  commerce  be- 
tween the  states,  but  it  does  not  constitute  the  entire 
field  covered  by  the  Employers'  Liability  Act.  When 
the  commerce  involved  is  transportation  from  one  state 
to  another,  the  act  of  interstate  commerce  is  done  by 
the  labor  of  men  and  with  the  help  of  things.  These 
men  and  things  are  the  agents  and  the  instruments  of 
the  commerce.  If  the  agents  or  instruments,  while  they 
are  so  employed,  are  destroyed  or  interrupted,  inter- 
state commerce  is  affected  and  interrupted.  Commerce, 
therefore,  within  the  federal  Act,  includes  more  than 
the  mere  carriage  of  commodities.  Whenever  employes 
are  engaged  in  work  which  is  so  directly  connected 
with  interstate  commerce  as  to  be  a  part  of  it,  they  are 
within  the  purview  of  the  federal  Act.  Many  illustra- 
tions of  this  principle  will  be  found  in  the  succeeding 
paragraphs. 

§  451.  Same  Act  May  Constitute  Interstate  Employ- 
ment in  One  Relation  and  not  in  Another.  The  test  of  in- 
terstate employment  is  the  relation  or  connection  to  inter- 
state transportation  of  the  work  at  which  the  employe  is 
engaged  at  the  time  of  the  injury.  The  same  act  of  work 
in  one  relation  or  situation  may  constitute  employment 
in  such  commerce  while  in  another  or  different  con- 
nection or  situation,  it  may  not  be  a  part  of  interstate 
transportation.  Thus,  a  switchman  engaged  in  moving 
a  carload  of  coal  to  a  coal  chute  for  the  purpose  of 
supplying  interstate  engines  with  coal  was  held  not  to 
be  engaged  in  interstate  commerce  by  the  national  Su- 

164  N.  y.  Supp.  1,  citing  Roberts'  4.     McKee  v.  Ohio  VaUey  Elec. 

Injuries  to   Interstate  Employes.        R.  Co.,  78  W.  Va.  131,  88  S.  E.  616. 


§  452]  Employes  Subject  to  Act.  779 

preme  Court ;'^  wliile  on  the  other  liaiid,  a  l)rak<'iiiaii 
engaged  in  doing  exactly  the  same  kind  of  work  was, 
by  tlie  Supreme  Court  of  Texas,  properly  held  to  be 
engaged  in  interstate  commerce."  The  switchman,  in 
the  Harrington  case,  however,  was  a  member  of  a 
terminal  crew  and  at  the  time  of  the  injury  was  en- 
gaged in  moving  intrastate  traffic,  that  is,  from  the 
storage  tracks  for  coal  to  a  chute  in  the  same  yard; 
but,  in  the  De  Bord  case,  the  employe  injured  was  a 
brakeman  on  an  interstate  train  between  two  terminals. 
His  act  in  moving  a  carload  of  coal  to  the  coal  chute 
for  the  purpose  of  supplying  the  interstate  engines,  was 
performed  at  a  way  station  between  tenninals.  It  was 
a  part  of  his  duty  in  switching  cars  out  of  an  inter- 
state train  so  that  his  work  in  moving  the  coal  to  the 
chute  came  within  the  purview  of  the  decision  of  the 
Supreme  Court  in  another  case,"  holding  that  an  em- 
ploye engaged  in  switching  a  car,  even  though  contain- 
ing intrastate  commerce  out  of  an  interstate  train,  was 
still  employed  in  interstate  commerce.  To  determine 
the  status  of  an  employe  with  reference  to  whether  the 
state  or  federal  law  controls,  each  case  must  be  examined 
in  the  light  of  its  particular  facts  with  a  view  of  ascer- 
taining whether,  at  the  time  of  the  injury,  the  employe 
was  engaged  in  interstate  transportation  or  in  an  act  so 
directly  and  immediately  connected  with  such  trans- 
l)ortation  as  substantially  to  form  a  part  or  a  necessary 
incident  thereof, 

§  452.  Criterion  Adopted  by  United  States  Supreme 
Court  in  Determining  Employment  in  Interstate  Com- 
merce. The  test  in  determining  whether  an  emijloye  of 
a  common  carrier  by  railroad  is  engaged  in  interstate 
commerce  within  the  meaning  of  the  Federal  Employ- 
ers' Liability  Act,  is  well  established  by  the  controlling 

5.  Chicago,   B.   &   Q.    R.   Co.    v.       Co.  v.  De  Bord, Tex. .  19J 

Harrington,   241    U.    S.    177.   60    L.       S.    W.    7G7. 

Ed.  941,  36  Sup.  Ct.  517,  11  N.  C.  7.     New  York  Cent.  &  H.   River 

C.  A.  992.  R.  Co.  V.  Carr,  238  U.  S.  260.  59  L. 

6.  Chicago,    R.    I.    &    G.    Ry.       Ed.  1298,  35  Sup.  Ct.  780,  9  N.  C. 

C.  A.  1. 


780  Injuries  to  Inteestate  Employes.         [§  452 

decisions  of  tlie  United  States  Supreme  Court,  but  the 
difficulty  lies  in  its  application  to  the  concrete  facts  of 
each  case.  The  following  excerpts  from  leading  opinions 
of  that  court  illustrate  the  criterion  applied:  '-Having 
in  mind  the  nature  and  usual  course  of  the  business  to 
which  the  act  relates  and  the  evident  purpose  of  Con- 
gress   in   adopting    the    act,    we    think    it   speaks    of 
interstate  commerce,  not  in  a  technical  legal  sense,  but 
in  a  practical   one  better   suited   to  the   occasion   (see 
Swift  &  Co.  V.  United  States,  196  U.  S.  375,  398),  and 
that  the  true  test  of  employment  in  such  commerce  in 
the  sense  intended  is,  was  the  employe  at  the  time  of 
the  injury  engaged   in  interstate   transportation   or  in 
work  so  closely  related  to  it  as  to  be  practically  a  part 
of  it;'"  "Among  the  questions  which  naturally  arise 
in  this  connection  are  these:   Was  that  work  being  done 
independently  of  the  interstate  commerce  in  which  the 
defendant  was  engaged,  or  was  it  so  closely  connected 
therewith  as  to  be  a  part  of  it?    Was  its  performance 
a  matter  of  indifference  so  far  as  that  commerce  was 
concerned,  or  was  it  in  the  nature  of  a  duty  resting 
upon  the  carrier?";^  "Each  case  must  be  decided  in  the 
light  of  the  particular  facts  with  a  view  of  determining 
whether,  at  the  time  of  the  injury,  the  employe  is  en- 
gaged in  interstate  business,  or  in  an  act  which  is  so 
directly  and  immediately  connected  with  such  business 
as  substantially  to  form  a  part  or  a  necessary  incident 
thereof";"  "Giving  to  the  words  'suffering  injury  while 
he  is  employed  by  such  carrier  in  such  commerce'  their 
natural  meaning,  as  we  think  must  be  done,  it  is  clear 
that  Congress  intended  to  confine  its  action  to  injuries 
occurring  when  the  particular  service  in  which  the  em- 
ploye is  engaged  is  a  part  of  interstate  commerce";" 

8.  Shanks  v.  Delaware,  L.  &  W.  10.  New  York  Cent.  &  H.  River 
R  Co  239  U.  S.  556,  60  L.  Ed.  R.  Co.  v.  Carr,  238  U.  S.  260,  59 
436.  36  Sup.  Ct.  188.  L.  Ed.  1298,  35  Sup.  Ct.  780,  9  N. 

9.  Pedersen  v.  Delaware,  L.  &  C.  C.  A.  1. 

W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed.  H.     Illinois     Cent.     R.     Co.     v. 

1125,  33  Sup.  Ct.  648,  3  N.  C.  C.  A.       Behrens,  233  U.  S,  473,  58  L.  Ed. 
779,  Ann.  Cas.  1914C  153.  1051,  34  Sup.  Ct.  646,  10  N.  C.  C. 

A.  153,  Ann.  Cas.  1914C  163. 


§  453]  Employes  Subject  to  Act.  781 

"By  the  term  of  the  Employers'  Liability  Act  the  true 
test  is  the  nature  of  the  work  being  done  at  the  time 
of  the  injury,  and  the  more  expectation  that  plaintiff 
would  presently  be  called  upon  to  perform  a  task  in 
interstate  commerce  is  not  sufficient  to  bring  the  case 
within  the  act.'"^ 

§  453.  Employes  Presumed  to  be  Engaged  in  Intra- 
state Commerce.  Until  the  contrary  is  shown,  it  will 
be  presumed  in  an  action  for  injunos  to  a  railroad  em- 
ploye through  the  negligence  of  his  emjjloyer,  in  the 
use  or  operation  of  its  railway  within  the  state,  that 
he  was  engaged  in  intrastate  commerce  and  that  he  is 
seeking  a  remedy  under  the  laws  of  the  state."  But 
another  court  held  that,  in  such  actions,  the  court  will 
take  judicial  notice  that  the  railroad  company  was  en- 
gaged in  interstate  commerce,^*  "It  is  apparent  that 
there  was  no  evidence  requiring  the  conclusion  that  the 
deceased  was  engaged  in  interstate  commerce  at  the 
time  of  his  injury,  and  we  are  asked  to  supply  the  de- 
ficiency by  taking  judicial  notice  that  the  cars  came  from 
without  the  State.  This  contention  we  are  unable  to 
sustain.  The  make-up  of  trains  and  the  movement  of 
cars  are  not  matters  which  we  may  assume  to  know 
without  evidence.     The  state   court,   with   its  intimate 

12.  Erie  R.  Co.  v.  Welsh.  242  U.       101  Atl.  532. 

S.  303,  Gl  L.  Ed.  319,  37  Sup.  Ct.  Ohio.     Erie  R.  Co.  v.  Helsh,  89 

116.  Ohio  St.  81,  105  N.  E.  189. 

13.  United  States.  Osborne  v.  Oklahoma.  Chicago,  R.  I.  &  P. 
Gray,  241  U.  S.  16,  60  L.  Ed.  8G5,  ^  ^^  ^.  ^^^^^^^  ^-  q^^^  192,  145 
36  Sup.  Ct.  486.  p^^    33^ 

Illinois.     Chicago,  R.  I.  &  P.  R. 
_  T    J     .  ■  ,    T>  „„j    ^o    Til-  In  the  absence  of  an  allegation 

Co.    V.    Industrial    Board    of    Illi-  .  .^       .,, 

nois.  273  111.  528,  L.  R.  A.  1916F  ^^   P^^^^   '^   ^^^f   contrary,   it   will 

540.  113  N.  E.  80.  ^^   presumed    that   the   work   per- 

T  J-  oo,-  p  XT'   r>    n^   ,r  formed  by  an  employe  of  a  rail- 

Indiana.    Chicago  &  E.  R.  Co.  V.  .   ^       ^  .  , 

„.,.  TJA  11^  road  company  was  intrastate  and 

Feightner, Ind.  App. ,114  '"""  .       ,.         .  n, 

^,    t,    -_-  not  interstate  in  character.     Ter- 
N.   Jii.   boa.  ,  ^        ^  /->  1 

r>     ^1  ,.    nv.A^^^^    tj  rv  V.  Southern  Pac.  Co.,  Cal. 

Iowa.     Bradbury  v.  Chicago,  R. 

I.  &  P.  R.  Co.,  149  Iowa  51,  40  L.  •  ^^'^  P^^"  ^^• 

R.  A.   (N.  S.)   684,  128  N.  W.  1.  !•<•      ^Iclntosh  v.  St.  Louis  &  S. 

Maryland.    Washington,  B.  &  A.  F.   R.   Co.,   182   Mo.  App.   2S8,   108 

E.  R.  Co.  V.  Owens. Md. ,  S.  W.  821. 


782  Injuries  to  Interstate  Employes.         [§  453 

knowledge  of  the  local  situation,  thought  that  such  an 
assumption  on  its  part  would  be  wholly  unwarranted  and 
we  cannot  say  that  it  erred  in  this  view.  The  fact  that 
Chattanooga  and  its  surburb,  Alton  Park,  were  near  the 
state  line  did  not  establish  that  the  cars  had  crossed 
it.  The  defendants  knew  the  actual  movement  of  the 
cars,  and  failing  to  inform  the  court  upon  this  point 
cannot  complain  that  they  have  been  deprived  of  a  Fed- 
eral right. '"^ 

§  454.  Prior  or  Subsequent  Employment  Immater- 
ial in  Determining  Applicability  of  Federal  Statute.  The 
nature  of  an  employe's  work  at  the  very  time  of  an  in- 
jury is  the  test  in  determining  whether  his  rights  and 
the  liability  of  the  defendant  are  governed  by  the  federal 
statute  to  the  exclusion  of  all  state  laws.  Whether  he 
had  previously  been  engaged  in  interstate  commerce,  or 
whether  it  was  contemplated  that  he  would  be  so  en- 
gaged after  his  immediate  duty  at  the  time  of  the  in- 
jury had  been  performed,  is  immaterial.^^  ''That  he 
was  expected,  upon  the  completion  of  that  task,  to  en- 
gage in  another  which  would  have  been  a  part  of  the 
interstate  commerce,  is  immaterial  under  the  statute,  for 
by  its  terms  the  true  test  is  the  nature  of  the  work 
being  done  at  the  time  of  the  injury."^'  "By  the  terms 
of  the  Employers'  Liability  Act  the  true  test  is  the 
nature  of  the  work  being  done  at  the  time  of  the  injury, 
and  the  mere  expectation  that  plaintiff  would  presently 
be  called  upon  to   perform   a  task  in   interstate   com- 

15.     Osborne  v.  Gray,  241  U.  S.  U    S.  556,  60  L.  Ed.  436,  36  Sup. 

16,  60  L.  Ed.  865,  36  Sup.  Ct.  486.  St.    188;     New    York    Cent.    &    H. 

See  Section  465,  in-fra.  River   R.    Co.   v.    Carr,    238    U.    S. 

10.       Illinois    Cent.    R.    Co.    v.  260,   59   L.   Ed.   1298,   35   Sup.   Ct. 

Cousins,  241  U.  S.  641,  60  L.  Ed.  ^g^^  9  N    C    C    A.  1 
1216,  36  Sup.  Ct.  446;    Chicago,  B. 

&  Q.  R.  Co.  V.  Harrington,  241  U.  l^"     ""^^^^  ^^^t-  ^-  ^^-  ^-  ^eh- 

S.  177,  60  L.  Ed.  941,  36  Sup.  Ct.  rens,  233  U.  S.  473,  58  L.  Ed.  1051, 

517,   11  N.  C.  C.  A.  992;     Shanks  34  Sup.  Ct.  646,  10  N.  C.  C.  A.  153, 

V.  Delaware,  L.  &  W.  R.  Co.,  239  Ann.  Cas.  1914C   163. 


§  455] 


Employes  Subject  to  Act. 


783 


merce    is  not    snfliciont    to    })rin;^   the    case    witliin    tlio 
act.'"« 


§  455.  Servants  Employed  in  Both  Intrastate  and 
Interstate  Commerce.  Although  an  employe  is  at  the 
time  engaged  in  intrastate  commerce  as  well  as  inter- 
state commerce,  as,  for  instance,  an  employe  on  a  train 
hauling  both  kinds  of  commerce  or  a  carpenter  repair- 
ing a  bridge  over  which  both  kinds  of  commerce  are 
carried,  yet  if  injured  under  such  circumstances,  he 
cannot  take  his  choice  of  remedy  under  the  state  and 
federal  law,  for  the  courts  hold  that  he  is  then  engaged 
in  interstate  commerce  and  the  remedy  given  by  the 
national  act  is  exclusive.'''  An  extreme  and  a  proper 
application  of  this  principle  is  the  following:  A  brake- 
man  injured  on   a  train  containing  nothing  but  intra- 


18.  Erie  R.  Co.  v.  Welsh,  242 
U.  S.  303,  1)1  L.  Ed.  :il9,  37  Sup. 
Ct.  116.  But  see  Section  505,  in- 
fra. 

19.  United  States.  New  York 
Cent.  &  H.  River  R.  Co.  v.  Carr, 
238  U.  S.  260,  59  L.  Ed.  1298,  35 
Sup.  Ct.  780,  9  N.  C.  C.  A.  1; 
Pedersen  v.  Delaware,  L.  &  W. 
R.  Co.,  229  U.  S.  146,  57  L.  Ed. 
1125,  33  Sup.  Ct.  G48,  3  N.  C.  C.  A. 
779,  Ann.  Cas.  1914C  153;  rev'g 
117  C.  C.  A.  33,  197  Fed.  537,  which 
aff'd  184  Fed.  737;  Michigan 
Cent.  R.  Co.  v.  Vreeland,  227  U. 
S.  59,  57  L.  Ed.  417,  33  Sup.  Ct. 
192,  Ann.  Cas.  1914C,  176;  Waters 
V.  Guile,  14S  C.  C.  A.  298,  234  Fed. 
532. 

Alabama.     Western   Ry.  of  Ala. 

V.    Mays.    Ala.    ,    72    So. 

441. 

Indiana.  Vandalia  R.  Co.  v. 
Holland,  183  Ind.  438,  108  N.  E. 
580. 

Iowa.  Bruckshaw  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  173  Iowa  207, 
155  N.  W.  273:  Ross  v.  Sheldon, 
176  Iowa  618,  154  N.  W.  499. 


Massachusetts.  Morrison      v. 

Commercial    Towboat    Co.,    

Mass.  ,  116  N.  E.  499. 

Michigan.  Fernette  v.  Pere  Mar- 
quette R.  Co.,  175  Mich.  653,  141 
N.  W.  1084,  144  N.  W.  834. 

Minnesota.  Crandall  v.  Chicago 
Great  Western  R.  Co..  127  Minn. 
498,  150  N.  W.  165. 

Missouri.  Noel  v.  Quincy,  0.  & 
K.  C.  R.  Co.,  Mo.  App.  , 

182  S.  W.  787. 

Montana.  McBain  v.  Northern 
Pac.  R.  Co.,  52  Mont.  578,  160 
Pac.  654. 

North  Carolina.  Horton  v.  Sea- 
board Air  Line  R.  Co.,  157  N.  C. 
146,  72   S.  E.  958. 

Texas.  Texas  &  P.  Ry.  Co.  v. 
Sherer,  Tex.  Civ.  App.  , 

183  S.  W.  404;    Southern  Pac.  Co. 

V.    Vaughn,    Tex.    Civ.    App. 

,  165  S.  W.  885. 

Vermont.  Lynch's  Adm'r  v. 
Central  Vermont  R.  Co.,  89  Vt. 
363.  95  Atl.   683. 

Washin^'ton.  Bolch  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  90  Wash.  47. 
155    Pac.    422;     Snyder    v.    Great 


784: 


Injuries  to  Interstate  Employes.         [§  455 


state  shipments  lias  no  remedy  under  the  federal  act 
but  the  minute  that  any  specie  of  merchandise  destined 
to  a  point  beyond  the  state  is  placed  in  that  train,  then 
if  the  brakeman  on  that  train  is  injured,  he  is  engaged 
in  interstate  commerce,  although  every  other  commodity 
in  that  train  is  a  shipment  between  two  points  in  the 
same  state.'° 


§  456.  Employes  on  Premises  of  Railroad  Company 
Going  to  or  from  Work.  The  federal  statute  not  only 
includes  employes  actually  engaged  in  interstate  com- 
merce but  it  also  covers  such  employes  on  the  railroad 
premises  while  going  to  or  from  their  work;  for,  in  such 
cases,  they  are  only  doing  that  which  is  essential  to 
enable  them  to  discharge  their  duties  as  employes  en- 
gaged in  interstate  commerce.^'    For  instance,  a  railroad 


Northern    R.    Co.,    88    Wash.    49, 
152  Pac.  703. 

West  Virginia.  Findley  v.  Coal 
&  Coke  R.  Co.,  76  W.  Va.  747,  87  S. 
E.  198. 

20.  United  States  v.  Colorado 
&  N.  W.  R.  Co.,  85  C.  C.  A.  48,  157 
Fed.  342,  15  L.  R.  A.  (N.  S.)  167, 
13  Ann.  Cas.  893.  Decedent  was 
brakeman  with  a  switching  crew 
in  a  freight  yard.  He  was  killed 
while  switching  cars.  The  evi- 
dence was  silent  as  to  whether  the 
cars  contained  interstate  ship- 
ments. It  was  held  that  his  wid- 
ow suing  as  administratrix  could 
not  recover  under  the  federal  act. 
Hench  v.  Pennsylvania  R.  Co.,  246 
Pa.  1,  L.  R.  A.  1915D  557,  Ann. 
Cas.   1916D   230,   91  Atl.   1056. 

21.  United  States.  Pry  or  v. 
Bishop.  148  C.  C.  A.  25,  234  Fed. 
9;  Chicago,  K.  &  S.  R.  Co.  v. 
Kindlesparker,  148  C.  C.  A.  17, 
234  Fed.  1;  Grand  Trunk  R.  Co. 
of  Canada  v.  Knapp,  147  C.  C.  A. 
624.  233  Fed.  950,  13  N.  C.  C.  A. 
1100;    Delaware  &  H.  Co.  v.  Ketz, 


147  C.  C.  A.  101,  233  Fed.  31; 
Great  Northern  R.  Co.  v.  Mustell, 
138  C.  C.  A.  305,  222  Fed.  879; 
Bravis  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  133  C.  C.  A.  228,  217  Fed. 
234;  San  Pedro,  L.  A.  &  S.  L.  R. 
Co.  V.  Davide,  127  C.  C.  A.  454,  210 
Fed.  870;  Feaster  v.  Philadelphia 
&  R.  Ry.  Co.,  197  Fed.  580;  Lam- 
phere  v.  Oregon  R.  &  Nav.  Co., 
116  C.  C.  A.  156,  196  Fed.  336,  47 
L.  R.  A.  (N.  S.)  1;  Harvey  v. 
Texas  &  P.  R.  Co.,  92  C.  C.  A. 
237,  166  Fed.  385;  St.  Louis 
Southwestern  R.  Co.  v.  Harvey,  75 
C.  C.  A.  536,  144  Fed.  806;  Ells- 
worth V.  Metheney,  44  C.  C.  A. 
484,  104  Fed.  119,  51  L.  R.  A.  389. 

Alabama.  Virginia  Bridge  & 
Iron  Co.  V.  .lordan,  143  Ala.  603, 
5  Ann.  Cas.  709,  42  So.  73. 

Georgia.  Savannah  &  N.  W.  Ry.' 
V.  Roach,  19  Ga.  App.  388,  91  S. 
E.  506;  Macon,  D.  &  S.  R.  Co.  v. 
Robinson,  19  Ga.  App.  370,  91  S. 
E.  492;  Seaboard  Air-Line  Ry. 
Co.  V.  McMichael,  143  Ga.  689,  85 
S.  E.  891. 


^  456] 


Employes  Subject  to  Act. 


785 


section  man  had  been  engaged  in  l^allasting  the  main 
track  of  a  railroad  which  carried  i'reiglit  and  i)assen- 


Illinois.  Staley  v.  Illinois  Cent. 
R.  Co..  268  III.  356,  L.  R.  A.  1916A 
450,  109  N.  E.  342. 

Kansas.  McQueen  v.  Central 
Branch  U.  P.  R.  Co.,  30  Kan.  689, 
1  Pac.   l.'^O. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Walker's  Adm'r,  162  Ky. 
209,  172  S.  W.  517. 

Massachusetts.  Oilman  v.  East- 
ern R.  Corporation,  lJ06  Allen^ 
(Mass.)  233,  87  Am.  Dec.  635. 

Michigan.  Salalirin  v.  Ann  Ar- 
bor R.  Co., Mich.  ,  160  N. 

W.    552. 

Minnesota.  Davis  v.  Chicago, 
R.  I.  &  P.  R.  Co..  134  Minn.  49, 
1.58   N.   W.    911. 

Missouri.  Smith  v.  Pryor  195 
Mo.  App.,  259,   190  S.  W.  69. 

Nebraska.  Huxoll  v.  Union  Pac. 
R.  Co.,  99  Neb.  170,  155  N.  W. 
900. 

New  York.     Ames  v.  New  York 

Cent.  R.  Co.,  N.  Y.  App.  Div. 

,    165   N.    Y.    Supp.    84;     Vick 

V.  New  York  Cent.  &  H.  River  R. 
Co.,  95  N.  Y.  267,  47  Am.  Rep. 
36. 

Rhode  Island.  Allen  v.  Gerard, 
21  R.  I.  467,  49  L.  R.  A.  351,  79 
Am.   St.  Rep.  816,  44  Atl.  592. 

Texas.     Texas  &  P.  Ry.   Co.   v. 

White, Tex.   Civ.   App.  , 

177  S.  W.  1185;    Missouri,  K.  &  T. 

Ry.   Co.   of  Texas  v.   Rentz,  

Tex.  Civ.  App. ,  162  S.  W.  959. 

Utah.  Grow  v.  Oregon  Short 
Line  R.  Co.,  44  Utah  160,  Ann.  Cas. 
1915B  481,  138  Pac.  398. 

Washington.  Horton  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  72 
"Wash.  503.  47  L.  R.  A.  (N.  S.)  8. 
1.10  Pac.  897. 

West  Virginia.  Easter  v.  Vir- 
ginian  R.   Co.,   76   W.  Va.  383,   11 

1    Control    Carriors   r.O 


N.   C.  C.  A.   101,  86   S.   E.  37. 

Wisconsin.  Molzoff  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  162  Wis.  451, 
11  N.  C.  C.  A.  273,  156  N.  W.  467; 
Ewald  V.  Chicago  &  N.  W.  Ry.  Co., 
70  Wis.  420,  5  Am.  Sf.  Rep.  178, 
36  N.  W.  12,  591. 

A  section  man,  killed  at  a  tool 
house  of  a  railroad  company  a  few 
minutes  before  7  o'clock  in  the 
morning,  the  hour  prescribed  for 
the  commencement  of  his  work, 
was  engaged  in  interstate  com- 
merce although  at  the  time  he 
was  not  engaged  in  any  labor  for 
the  carrier.  Stool  v.  Northern  P. 
R.  Co., Or.  ,  172  Pac.  101. 

An  electrical  engineer  employed 
by  a  common  carrier  to  instruct 
its  motormen  how  to  operate  elec- 
tric motors  over  a  part  of  its  rail- 
way was  engaged  in  interstate 
commerce  although  at  the  time 
he  received  an  injury  he  was  re- 
turning to  his  headquarters. 
Dumphy  v.  Norfolk  &  W.  R.  Co., 
W.  Va.  ,  95  S.  E.  863. 

A  locomotive  fireman  who  had 
returned  from  his  regular  run  on 
a  Saturday  evening  and  who  was 
to  go  out  again  at  3:45  a.  m.  on 
]\Ionday  morning,  was  not  engaged 
in  interstate  commerce  when 
walking  through  the  railroad 
yards  on  Sunday  for  the  purpose 
of  taking  his  tools  from  an  en- 
gine on  which  he  had  worked  at 
some  previous  time  but  not  on 
the  preceding  day.  to  the  engine 
upon  which  he  was  scheduled  to 
leave  on  the  following  morning, 
because  his  act  in  going  for  the 
tools,  the  court  held,  was  not  di- 
rectly and  immediately  connected 
with  the  work  on  which  he  ex- 
pected to  be  employed  on  the  fol- 


786 


Injuries  to  Interstate  Employes.         [§  456 


gers  between  different  stations.  At  the  time  he  was 
injured  he  was  returning  to  the  camp  at  the  conclusion 
of  liis  day's  labor  on  the  handcar.  The  court  held  that 
he  was  still  engaged  in  interstate  commerce  within  the 
terms  of  the  national  statute."  But  another  court  er- 
roneously held  that  a  member  of  a  track-laying  gang 
which  worked  during  the  usual  hours  in  the  daytime, 
was  employed  in  interstate  commerce  while  asleep  at 
night  in  a  bunk  car  on  a  side  track.-^  A  track  laborer, 
while  walking  along  a  railroad  track  from  a  bridge  or 
trestle  where  he  has  been  at  work  during  the  day  to 
"boarding  cars"  on  the  right  of  way  of  the  railroad 
company,  was  within  the  protection  of  the  federal  act.^* 
A  locomotive  fireman  in  the  employ  of  a  railroad 
company  was  ordered  to  proceed  from  his  home  to  the 
railway  station  of  the  defendant  in  that  town  and  there 
secure   transportation   and   go    on   a   certain   interstate 


lowing  day.     Hansen  v.  New  York 

C.  &  H.  R.  R.  Co.,  N.  J.  , 

103   Atl.   200. 

22.  San  Pedro,  L.  A.  &  S.  L.  R. 
Co.  V.  Davide,  127  C.  C.  A.  454, 
210  Fed.  870.  Accord:  Grow  v. 
Oregon  Short  Line  R.  Co.,  44  Utah 
160,  Ann.  Cas.  1915B  481,  138  Pac. 
398. 

23.  Sanders  v.  Charleston  &  W. 
C.  Ry.  Co.,  97  S.  C.  50,  81  S.  E. 
283.     See  section  458,  infra. 

24.  Louisville  &  N.  R.  Co.  v. 
Walker's  Adm'r,  162  Ky.  209,  172 
S.  W.  517.  In  that  case  the  court 
said:  "It  is  very  clear  that  whii" 
actually  engaged  at  work  for  the 
company  he  was  an  employee  en- 
gaged in  interstate  commerce,  and 
we  think  it  equally  clear  that  the 
moment  his  day's  work  ended  he 
was  not  thereby  converted  into 
some  other  kind  of  an  employe, 
hut  that  he  either  retained  his 
character  as  an  interestate  em- 
ploye, or  became,  when  his  work 
ended,  and  while  going  to  the 
boarding   car    under    the   circum- 


stances stated,  a  licensee.  After 
giving  to  this  question  careful 
consideration  our  opinion  is  that 
in  going  from  his  place  of  work 
to  his  boarding  car  he  continued 
in  the  character  of  an  employe  of 
the  company,  engaged  in  inter- 
state commerce.  The  boarding 
cars  in  which  he  took  his  meals 
and  remained  at  night  were  own- 
ed by  the  company.  *  *  *  And 
so  we  think  that  under  those  cir- 
cumstances an  employe  such  as 
Walker  was,  should  be  treated  as 
engaged  in  interstate  commerce, 
not  only  when  actually  employed 
at  his  work,  but  while  using  the 
premises  of  the  company  in  go- 
ing to  and  from  the  place  set 
apart  for  him  to  eat  and  sleep 
and  his  work  on  the  premises  of 
the  company.  In  other  words, 
within  the  contemplation  of  the 
act,  the  course  of  his  employment 
covered,  not  only  the  time  he  was 
actually  engaged  at  work,  but  the 
time  he  was  engaged  in  going  to 
and  from  his  work." 


•^  456]  Employes  Subject  to  Act.  787 

train  to  another  town  in  the  same  state  wliorc  ho  was 
to  assist  in  relieving  a  train  crew  whicli  liad  been  em- 
ployed continuously  for  more  than  16  hours  on  an  inter- 
state train.  After  receiving  this  order  the  fireman 
hastened  to  the  depot  and  had  reached  a  crossing  in 
the  yards  of  the  railroad  company  where  the  cars  were 
cut,  when,  without  warning,  the  cars  were  suddenly 
closed  by  reason  of  other  cars  being  negligently  "kick- 
ed" against  them  and  he  thereby  sustained  injuries 
causing  his  death.  In  a  subsequent  action  under  tlie 
federal  act  the  petition  alleged  that  at  the  time  of  the 
happening  of  the  injury  and  death  "and  immediately 
l)rior  thereto,  he  was  engaged  in  the  performance  of  his 
duty  in  the  employment  of  the  said  Oregon  Railroad  & 
Navigation  Company  in  doing  and  performing  exclusive- 
ly the  acts  and  things  necessary  and  proper  to  be  done 
in  the  performance  of  his  said  duties  in  obedience  to 
the  order  of  said  company,  and  as  a  part  of  the  neces- 
sities and  requirements  of  the  said  company  in  aid  of 
and  as  a  part  of  the  operation  of  its  cars,  engines  and 
trains  in  carrj'ing  on  defendant's  business  of  interstate 
commerce  by  railroad."  Under  these  facts  it  was  held 
by  the  Federal  Circuit  Court  of  Appeals  that  the  dece- 
dent was  employed  in  interstate  commerce,  the  court  say- 
ing: "The  decedent  when  he  was  killed  was  not  only 
on  his  way  to  work  for  his  employer,  but  he  was  pro- 
ceeding under  the  direct  and  peremptory  command  of 
the  railroad  company  to  do  a  designated  specific  act  in 
the  service  of  the  company,  to-wit,  to  move  a  train  then 
engaged  in  interstate  commerce.  He  was  on  the  premises 
of  the  railroad  company  and  in  the  discharge  of  his 
duty  when  he  met  his  death  and  the  train  which  struck 
him  and  caused  his  death  was  engaged  in  interstate 
commerce,  and  belonged  to  the  same  railroad  com- 
pany. '  '^^ 

25.  Lamphere    v.    Oregon    R.    &  souri,   K.   &   T.   Ry.   Co.   of  Texas 

Nav.    Co..    116    C.    C.    A.    156.    196  v.  Rentz.  Tex.  Civ.  App.  — , 

Fed.   336.   47   L.   R.   A.    (N.    S.)    1,  162   S.  W.   959. 
rev'g  193  Fed.  248.     Accord:    Mis- 


788  Injuries  to  Interstate  EivrpLOYES.         [<^  456 

Assuming  that  the  employe  was  either  returning 
from  or  going  to  work  for  the  company  in  interstate 
commerce,  the  question  as  to  whether  he  was  engaged 
in  interstate  commerce  while  so  going  to  or  from  his 
work,  will  depend  upon  the  further  question  as  to  when 
the  relation  of  master  and  servant  commences  or  ends, 
as  the  case  may  be  and  the  solution  of  this  problem 
must  be  made  in  the  light  of  common  law  decisions  ap- 
plicable. The  relation  of  master  and  servant  in  so  far 
as  the  obligation  to  protect  the  employe  is  concerned 
begins  when  the  employe  is  necessarily  on  the  premises 
of  the  master  pursuant  to  his  contract  of  employment.'® 
A  fireman  left  his  engine  in  the  railroad  yards  and  went 
to  his  boarding  house  on  a  personal  errand.  While  he 
was  walking  through  the  yards  he  was  struck  by  some 
cars.  On  his  return  he  expected  to  fire  an  engine  pull- 
ing an  interstate  train.  It  was  held  that  he  was  en- 
gaged in  interstate  commerce  at  the  time  of  the  casual- 
ty.-^ A  hostler  who  worked  in  a  roundhouse  on  engines 
used  in  hauling  both  interstate  and  intrastate  commerce 
was  held  not  to  be  engaged  in  interstate  commerce  while 
he  was  walking  through  the  yards  to  a  rest  shanty  on 
the  property  of  the  railroad  company.'^    An  extra  brake- 

26.  Uni'ted    States.      Fletcher   v.  Texas.      Missouri,    K.    &   T.    Ry. 

Baltimore  &  O.  R.  Co.,  168  U.  S.       Co.   of  Texas  v.  Rentz,  Tex. 

1:35,  42  L.  Ed.  411,  18  Sup.  Ct.  35;       Civ.  App.  ,  162   S.  W.  959. 

Packet  Co.  v.  McCue,  17  Wall.   (U.  Washington.      Hobbs     v.     Great 

S.)   508,  21  L.  Ed.  705;    Lamphere  Northern  R.  Co.,  80  Wash.  678,  L. 

V.   Oregon   R.   &  Nav.   Co..   116   C.  R.  A.  1915D  503,  142  Pac.  20. 

C.  A.  156,  196  Fed.  336,  47  L.  R.  Wisconsin.     Gray   v.   Chicago   & 

A.   (N.  S.)   1;    Harvey  v.  Texas  &  N.   W.    R.   Co..   153   Wis.   637,   142 

P.  R.  Co.,  92  C.  C.  A.  237,  166  Fed.  N.  W.   505;     Ewald  v.   Chicago   & 

385;     Dishon  v.  Cincinnati.  N.  O.  N.  W.  Ry.  Co.,  70  Wis.  420,  5  Am. 

&  T.  P.  Ry.  Co.,  126  Fed.  194.  St.   Rep.  178,  36  N.  W.   12. 

Kansas.     Bumstead   v.   Missouri  27.      North    Carolina    R.    Co.    v. 

Pac.  R.  Co.,  99  Kan.  589,  L.  R.  A.  Zachary.  232  U.   S.  248,   58  L.   Ed. 

1917E  734,  162  Pac.  347.  591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 

Kentucky.     Chesapeake  &  O.  R.  109,  Ann.  Cas.  1914C  159. 

Co.  v.  Harmon's  Adm'r.  173  Ky.  1,  28.      Gray  v.   Chicago   &   N.   W. 

189  S.  W.  1135.  R.   Co..    153   Wis.    637,   142    N.   W. 

Massachusetts.      Olsen     v.     An-  505.     The  court  in  this  case  also 

drews,  168  Mass.  261,  47  N.  E.  90.  held  that  hostlers  working  on  en- 
New  York.     Eoldt  v.  New  York  !rino=^  used  indiscriminately  in  car- 

Crnt.  R.  Co..  18  N.  Y.  432.  rying   both    interstate    and    intra- 


§  456]  Employes  Subject  to  Act.  789 

man,  working  for  a  railroad  company,  having  been  sent 
out  on  a  passenger  train  carrying  interstate  passengers 
as  a  brakeman,  was,  at  tlie  time  of  his  injuries,  return- 
ing on  anotlier  train  on  a  "pass"  back  to  tlie  division 
point.  In  railway  parlance  he  was  ''dead-heading" 
back  to  his  headquarters.  The  court  held  that  he  was 
engaged  in  interstate  commerce  although  he  was  not 
employed  on  the  train  he  was  riding  on.^'*  A  member 
of  a  track-laying  gang  while  resting  on  Sunday  in  a 
camp  on  the  right  of  way  was  directed  by  one  of  the 
foremen  to  get  on  a  passing  train  in  order  to  get  the 
mail  for  the  camp  at  the  next  station.  When  he  tried 
to  get  on  the  train  he  fell  and  was  injured.  The  court 
held  that  he  was  not  engaged  in  interstate  commerce.'" 
A  railroad  employe  at  the  time  he  was  injured  had 
completed  his  work  for  the  day  and  had  left  the  work 
shop  and  the  premises  of  the  railroad  company.  lie 
was  walking  along  a  street  when  he  was  struck  by  a 
piece  of  timber  thrown  from  a  train  belonging  to  the 
railroad  company  for  which  he  worked.  The  court  held 
that  the  relation  of  master  and  servant  did  not  exist  so 
as  to  render  the  company  liable  for  the  act  of  another 
employe  in  negligently  throwing  the  timber.^^  A  rail- 
road employe  while  riding  home  on  one  of  the  company's 
trains  was  held  not  employed  in  interstate  commerce  as 
there  was  no  evidence  introduced  to  show  that  he  was 
then  or  had  been  employed  in  interstate  commerce.^- 
The  opinion  does  not  disclose  the  nature  of  his  employ- 
state  commerce  were  not  engaged  Ct.  651,  Ann.  Cas.  1914C  15G;  Ped- 
in  interstate  commerce.  See  sec-  ersen  v.  Delaware,  L.  &  W.  R.  Co., 
lion  488,  infra.  117    c.    C.    A.    33,    197    Fed.    537;' 

29.  St.   Louis   &   Southwestern      Lamphere    v.    Oregon    R.    &   Nav 

Ry.  Co.  V.  Brothers, Tex.  Civ.      ^^^    ^93    ^^^  ^^^    CCA 

App.  ,  165  S.  W.  488. 

30.  Myers  v.  Norfolk  &  W.  R. 
Co.,  162  N.  C.  343,  48  L.  R.  A.  (N. 
^.)  987,  78  S.  E.  280.  The  court 
in  this  case  based  Its  decision  on  ^-  ^^■'  ^^^  U.  S.  135,  42  L.  Ed. 
three  cases  subsequently  over-  •  ^*  Sup.  Ct.  35,  6  App.  Cas. 
ruled  in  a  higher  court,  St.  Louis,       (D-  C.)   385. 

S.   F.   &   T.   R.   Co.   V.   Scale,   229  32.    Bennett  v.  Lehigh  Valley  R. 

U.  S.  156,  57  L.  Ed.  1129,  33  Sup.       Co.,  197  Fed.  578. 


156,  196  Fed.  336,  47  L.  R.  A.   (N. 
S.)   1. 
31.     Fletcher  v.  Baltimore  &  P. 


7i90  Injuries  to  Interstate  Employes.         [^  456 

meut  for  the  railroad  company.  A  section  laborer  re- 
turning to  his  sleeping  quarters  on  a  hand  car  after 
working  hours  was  within  the  protection  of  the  federal 
act,  provided  he  was  so  going  under  the  command  of 
his  emploYer."\  When  an  employe  is  summoned  for 
duty  in  connection  with  interstate  transportation,  he 
is  within  the  protection  of  the  federal  act  as  soon  as  he 
comes  upon  the  premises  of  the  railway  company;  and, 
he  is  also  under  the  same  protection  while,  after  leaving 
his  duties,  he  is  passing  out  of  the  premises  of  his  em- 
ployer, provided  it  is  done  within  a  reasonable  time 
and  along  the  usual  route.^* 

§  457.  Status  of  Employes  Injured  While  Going  to 
or  From  Day's  Work  Partly  in  Interstate  and  Partly  in 
State  Commerce.  That  the  relationship  of  master  and 
servant  exists  at  the  time  of  an  injury  is  not  sufficient 
to  permit  a  recovery  under  the  federal  act.  There  must 
be,  in  addition  thereto,  a  close  and  direct  connection  at 
the  time  of  the  injury  with  interstate  commerce  to 
justify  the  application  of  the  national  statute.  The 
cases  discussed  and  cited  in  the  foregoing  paragraph 
amply  sustain  the  rule  that  an  employe  injured  on  his 
master's  premises  while  going  to  or  from  his  place  of 
labor  where  he  is  exclusively  engaged  in  interstate 
commerce  during  the  day,  is  governed  by  the  federal 
act.  On  the  other  hand,  an  employe  injured  while  on 
his  way  to  such  work  for  a  carrier  that  constitutes  intra- 
state commerce  exclusively,  or  in  work  that  is  not  inter- 
state commerce,  must  look  to  the  laws  of  the,  state  for  a 
remedy.^^ 

But  there  are  many  railroad  employes  whose  work 
during  the  day  is  not  devoted  exclusively  to  either  kind 

33.  Salabrin   v.   Ann    Arbor   R.  during  the  day,  and  by  the  same 

Co.,   Mich. ,    160    N.    W.  mark    he    was    not    so    employed 

552.  while  he  was  going  on  the  hand- 

34.  Davis  v.  Chicago,  R.  I.  &  car  to  and  returning  from  his 
P.  R.  Co.,  134  Minn.  49,  158  N.  worlc."  Sanborn,  J.,  in  Bravis  v. 
W.  911.  Chicago,   M.   &   St.  P.   R.  Co.,   133 

35.  "The  plaintiff  was  not  em-  C.  C.  A.  228,  217  Fed.  234. 
ployed     in     interstate     commerce 


§  457]  Employes  Subject  to  Act.  791 

of  commerce.  For  example,  switchmen,  during  their 
period  of  work,  are  sometimes  engaged  in  interstate 
and,  at  other  times,  in  intrastate  oomniercc.  What, 
then,  in  so  far  as  the  applicability  of  the  federal  act 
is  concerned,  is  the  status  of  such  an  employe  if  injured 
on  the  master's  premises  while  going  to  or  from  his 
place  of  work?  He  camiot  take  his  choice  of  remedy  be- 
tween the  state  law  and  the  federal  act;  for  both  never 
apply  to  the  same  injury.  A  New  York  court  held, 
that,  under  such  circumstances,  the  employe  was  not 
engaged  in  interstate  commerce.^''  In  that  case,  it  ap- 
peared that  the  employe,  a  member  of  a  switching  crew, 
was  on.  his  way  to  begin  his  day's  work  and  was  killed 
while  crossing  a  track  in  the  yard  of  his  employer.  His 
work  during  the  day  was  not  exclusively  in  interstate 
commerce,  but  at  times  he  assisted  in  the  movement  of 
cars  containing  intrastate  traffic,  and,  at  other  times, 
cars  containing  interstate  commerce.  His  initial  work 
on  that  day,  had  he  not  been  killed,  was  to  move  inter- 
state cars.  A  recovery  under  the  federal  act  was  denied, 
although  the  court  conceded  that  the  relation  of  master 
and  sen-ant  existed  at  the  time  of  the  injury. 

The  ruling  of  this  court,  however,  was,  no  doubt, 
in  effect,  overruled  by  a  subsequent  decision  of  the 
national  Supreme  Court."  In  the  Winfield  case,  the  em- 
ploye was  in  charge  of  a  switch  engine  in  a  terminal 
yard  and  was  engaged,  during  the  day,  in  switching 
freight  cars.  In  some,  the  freight  was  interstate,  in 
others,  intrastate,  and  in  still  others,  it  was  of  both  class- 
es. This  was  true  of  the  cars  moved  on  the  day  he  was  in- 
jured. Upon  the  conclusion  of  his  day's  work,  he  took 
his  engine  to  the  place  where  it  was  to  remain  for  the 
night,  and  then  started  to  leave  the  yard  for  his  home. 
While  crossing  one  of  the  tracks,  he  was  killed.  These 
facts  sustained  the  conclusion  that  the  deceased  was 
employed  in  interstate  commerce  at  the  time  of  his 
death.    ''In  leaving  the  carrier's  yard,"  said  the  court, 

36.     Knowles  v.   New   York,   N.  37.     Erie  R.  Co.  v.  Winfield,  244 

H.  &  H.  R.  Co.,  177  N.  Y.  App.  U.  S.  170,  61  L.  Ed.  1057,  37  Sup. 
Div.  262.  164  N.  Y.  Supp.  1.  Ct.  556,  14  N.  C.  C.  A.  957. 


7i9'2  Injuries  to  Interstate  Employes.         ["^  457 

"at  the  close  of  Ms  day's  work  the  deceased  was  but 
discharginsi"  a  dutv  of  his  employment.  See  North  Car- 
olina B.  Co.  V.  Zachary,  232  U.  S.  248,  260,  58  L.  Ed. 
591,  596,  34  Sup.  Ct.  Eep.  305,  9  N.  C.  C.  A.  109,  Ann. 
Cas.  1914C,  159.  Like  his  trip  through  the  yard  to  his 
engine  in  the  morning,  it  was  a  necessary  incident  of 
his  day's  work,  and  partook  of  the  character  of  that 
work  as  a  whole,  for  it  was  no  more  an  incident  of  one 
part  than  of  another.  His  day's  work  was  in  both  inter- 
state and  intrastate  commerce,  and  so,  when  he  was 
leaving  the  yard  at  the  time  of  the  injury,  his  employ- 
ment was  in  both.  That  he  was  employed  in  interstate 
commerce  is  therefore  plain,  and  that  his  employment 
also  extended  to  intrastate  commerce  is,  for  present  pur- 
poses, of  no  importance." 

§  458.  Employer  not  Liable  to  Employe  Injured 
After  Day's  Work  is  Over— Sleeping  in  Cars.  A  com- 
mon carrier  by  railroad  is  liable  only  to  the  servant 
when  the  latter  is  actually  in  its  service,  and  the  relation 
does  not  exist  where  it  appears  that  the  performance 
of  the  master's  work  has  been  completed.^^  For  ex- 
ample, a  car  accountant  who  had  turned  in  his  report 
to  the  office,  had  left  the  last  place  at  which  all  his  duties 
were  to  be  performed,  and  had,  in  fact,  completed  his 
work  for  the  day,  was  held  not  to  be  employed  in  inter- 
state commerce  while  he  was  leaving  the  premises  of 
the  defendant  without  any  immediate  intention  of  re- 
turning to  complete  any  of  his  duties.^^  A  section  labor- 
er after  quitting  work  for  the  day  and  sometime  after 
6  p.  m.  and  while  returning  home,  stepped  under  a  box 
car  to  protect  himself  from  the   rain.     While  in  that 

38.     Seaboard  Air  Line  Ry.  Co.       chison,   T.   &   S.   F.   Ry.   Co.,  

V.   Padgett,   236    U.    S.   668,    59    L.      Tex.    Civ.    App.    ,    192    S.    W. 

Ed.  777,  35  Sup.  Ct.   481,  aff'g  99       274;    Beaumont  &  G.  N.  R.  Co.  v. 

S.  0.  364,  83  S.  E.  633;    Fletcher       ^         ,  n^        n-       ^ 

Gonzales,  Tex.  Civ.  App.  — , 

V.  Baltimore  &  P.  R.  Co.,  168  U. 

S.  135,  42  L.  Ed.  411,  18  Sup.  Ct.  ^^^   ^-  ^-  ^^^• 

35;     Ames  v.  New  York  Cent.   R.  ^9.     Jacoby  v.  Chicago,  M.  &  St. 

Co.,    N.    Y.    App.    Div.    ,  P-  Ry-  Co.,   165   Wis.   610,   161  N. 

165  N.  Y.  Supp.  84;    Perez  v.  At-  W.  751,  164  N.  W.  88. 


<§  458]  Employes  Subject  to  Act.  793 

position  tlie  car  was  moved.  It  was  lield  tliat  lie  was  not 
employed  within  the  purview  of  the  Federal  Act.*" 

In  a  case  before  the  Supreme  Court  of  South  Car- 
olina,** it  appeared  that  the  plaintiff  was  a  track  labor- 
er, and,  during:  working-  hours,  assisted  a  ^anj^  in  relay- 
ing rails  on  the  defendant's  lines  of  railway  and  had 
been  so  engaged  for  some  weeks.  At  night  he  slept  on  a 
bunk  in  a  shanty  car  of  a  woi-k  train  which  stood  on  a 
side  track.  AVhile  asleep  at  night  in  the  car  he  was  in- 
jured in  a  collision  with  another  train.  The  Su])reme 
Court  of  South  Carolina,  under  these  facts,  held  that 
the  plaintiff  at  the  time  of  his  injury  was  engaged  in 
interstate  commerce.  In  answering  the  contention  of 
counsel  that  the  plaintiff  was  not  at  the  time  employed 
in  interstate  commerce,  the  court  said:  ''When  the 
plaintiff  was  in  the  bunk  of  his  shanty  in  'sleep  that 
knits  up  the  ravelled  sleeve  of  care'  and  getting  strength 
to  lay  rails  next  day,  the  law  imi)uted  to  him  actual 
service  on  the  track  and  extended  to  him  the  rights  of 
such  a  worker;  'for  the  letter  (of  the  law)  killeth  but 
the  spirit  giveth  life.'  "  The  ruling  of  the  court  in 
this  case  was  palpably  erroneous,  for  railroad  employes 
while  asleep  at  night  and  not  on  duty  are  not  then 
employed  by  the  carrier  in  interstate  commerce,  no 
matter  whether  they  are  taking  their  rest  and  sleep  in 
their  own  homes  or  in  places  furnished  them  by  the 
railroad  company  by  reason  of  the  transitory  nature  of 
their  work.*- 

The  federal  statute  was  enacted  only  with  reference 
to  those  railroad  employes  who,  while  in  the  actual  dis- 
charge of  their  duties  in  interstate  commerce,  are  in- 
jured. A  member  of  a  train  crew,  therefore,  regularly 
employed  in  moving  trains  from  a  terminal  in  one  state 
to  a  terminal  in  another,  was  not  engaged  in  interstate 
commerce  while  asleep  in  the  caboose  at  one  of  the  ter- 

40.  Perez  v.  Atchison,  T.  &  S.       C".   Ry.   Co.,  97   S.  C.  50.  81   S.   E. 
F.    Ry.    Co..   Tex.    Civ.    App.       283. 

,  192  S.  W.  274.  42.     See  Section  456. 

41.  Sanders  v.  Charleston  &  W. 


704  Injuries  to  Interstatk  Employes.         [§  458 

minals  between  trips."  "If,  however,  he  could  be 
deemed  to  be  in  the  employment  of  the  company  at  the 
time  of  the  injury,  nevertheless  he  was  not  then  actually 
employed  in  interstate  commerce.  His  actual  employ- 
ment at  the  time  was  holding  himself  ready  in  the  city 
of  Chicago  to  respond  to  a  call  for  service.  That  the 
call,  when  it  came,  would  be  for  an  interstate  trip,  does 
not  make  the  waiting  in  Chicago  an  actual  engagement 
in  interstate  commerce,  within  the  terms  of  the  federal 
act.  Plaintiff's  claim  that,  by  the  hitching  on  of  the 
caboose  in  question  to  the  transfer  train,  decedent's 
crew  was  called,  and  that  his  interstate  service  had  thus 
actually  begun,  does  not  commend  itself  to  our  judg- 
ment. It  was  not,  noi*  was  it  intended  as  such.  Clearly 
the  crew  had  not  started  with  the  caboose  upon  their 
home  run.  Neither  does  it  appear  from  the  evidence 
tliat  the  caboose  and  train  crew  were  at  the  place  of  the 
injury  for  the  benefit  of  defendant,  or  that  they  were 
wanted  there  at  the  time,  or  that  there  was  any  under- 
standing that  they  should  be  at  Landers  at  or  near  that 
time,  or  that  they  were  at  the  place  of  the  accident  with 
other  right  than  the  mere  sufferance  of  defendant,  that 
being  the  most  convenient  way  for  them  to  get  to  Land- 
ers and  secure  sleep  and  other  accomodations  for  the 
night,  or  that  they  were  under  any  expectancy  of  a  call, 
or  that  their  acts  in  the  premises  had  any  bearing  upon 
interstate  commerce,  or  that  the  facts  of  the  case  brought 
the  decedent  within  the  provisions  of  the  federal  Em- 
ployers' Liability  Act.  We  are  unable  to  discover  from 
the  evidence  or  the  law  upon  what  ground  plaintiff's 
decedent's  x^resence  at  or  near  Landers  at  the  time  of 
the  accident  can  be  said  to  have  been  a  step  in  the  per- 
formance of  any  actual  service  to  defendant  in  inter- 
state commerce.  He  was  there  in  no  sense  under  the 
direction  of  defendant  growing  out  of  the  relation  of 
master  and  servant.  He  was  his  own  master.  As  was 
said  in  Illinois  Central  R.  R.  v.  Behrens,  supra:  'That 
he  (the  servant)  was  expected,  upon  the  completion  of 

43.     Pryor  v.  Bishop,  148  C.  C.      A.   25,   234   Fed.    9. 


§  459']  Employes  Snn.iF.cT  to  Act.  795 

that  task  (moving  intrastate  cars),  to  engage  in  another 
whic.li  would  have  l)een  a  part  of  interstate  commerce, 
is  immateiial  under  the  statute,  for  by  its  terms  tlie 
true  test  is  tlie  nature  of  the  work  being  done  at  the 
time  of  the  injury.'  To  hold  that  decedent  was,  at  tlie 
time  of  the  injury — some  4  or  5  liours  l)efore  he  was 
wanted  by  defendant— employed  in  interstate  commerce, 
would  practically  make  tlie  defendant  liable  to  him  as 
engaged  in  interstate  commerce  at  all  times.  Such  is 
not  the  ])ur])ose  of  the  act."^' 

§  459.  Effect  of  Temporary  Cessation  in  or  Abandon- 
ment of  Work  in  Interstate  Commerce.  AVhen  an  em- 
ploye is  engaged  in  work  that  constitutes  interstate 
commerce  under  tlie  Federal  Act,  a  temporary  cessation 
in  or  temporary  absence  from  his  employment  does  not 
deprive  him  of  the  benefit  of  the  federal  statute.  Thus, 
where  an  employe  was  engaged  in  removing  snow  from 
railway  tracks,  a  temporary  interruption  due  to  the  in- 
clemency of  the  weather  during  which  time  the  employe 
took  refuge  from  a  storm  in  a  covered  car  near  the 
tracks,  was  not  an  abandonment  of  his  interstate  em- 
ployment.*^ In  another  case  it  appeared  that  a  fireman, 
who  had  been  preparing  his  engine  for  an  interstate 
trip,  left  the  engine  to  go  to  his  boarding  house  on  a 
personal  errand  with  the  expectation  of  returning  with- 
in a  few  minutes.  "There  is  nothing  to  indicate  that 
this  brief  visit,"  said  the  court,*®  "to  the  boarding- 
house  was  at  all  out  of  the  ordinary,  or  was  inconsistent 
with  his  duty  to  his  emploj^er.  It  seems  to  us  clear  that 
the  man  was  still  'on  duty,'  and  employed  in  commerce, 
notwithstanding  his  temporary  absence  from  the  loco- 
motive engine." 

44.     See  also  Bumstead  v.  Mis-  terstate  commerce, 

souri  Pac.  R.  Co.,  99  Kan.  589,  L.  45.     Armbrecht  v.  Delaware,  L. 

R.  A.  1917E  734,  162  Pac.  347,  in       &  W.  R.  Co.,  N.   J.  L.  , 

which  the  court  held  that  a  freight  101   Atl.   203. 

conductor      while      dressing     and  46.      North    Carolina    R.    Co.    v. 

getting    breakfast    in    his    waycar  Zachary,  232  U.  S.  248.  58  L.  Ed. 

where  he  was  accustomed  to  sleep  591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 

before  he  was  called   for  the   re-  109,   Ann.   Cas.   1914C   159. 
turn  trip,  was  not  engaged  in  in- 


7i96  Injuries  to  Interstate  Employes.         [§  460 

§  460.    Employes  of  Private  Carriers  Transporting 
their  Own  Property  not  Subject  to  Statute.     The  Em- 

ployer8'  Liability  Act  is  limited  to  servants  of  common 
carriers  by  railroad.    The  Act  does  not,  therefore,  apply 
to  employes  of  a  private  carrier  by  railroad  hauling  its 
own  property  to  a  point  where  the  interstate  transporta- 
tion over  tlie   line  of  a  common   carrier  commences.*' 
In  the  McCluskey  case,  cited,  it  appeared  that  a  brake- 
man  in  the  employ  of  a  logging  railroad  owned  by  a 
mill  company,  was  injured  while  moving  logs  from  a 
forest  to  tide  water  where  they  were  sold.     In  denying 
a  recovery  under  the  Federal  Act,  the  court  said:  ''The 
conclusion  of  the  court  below  that  under  these  facts  the 
defendants  were  not  engaged  in  interstate   or  foreign 
commerce  when  the  injuries  were  suffered  was  based 
upon  the  decisions  in  Coe  v.  Errol,  116  U.  S.  517,  and 
The   Daniel  Ball,    10   Wall.    557,   from    the   former   of 
which  the  following  quotations  were  made:    'When  the 
products  of  the  farm  or  the  forest  are  collected   and 
brought  in  from  the  surrounding  country  to  a  town  or 
station  serving  as  an  entrepot  for  that  particular  region, 
whether  on  a  river  or  a  line  of  railroad,  such  products 
are  not  yet  exports,  nor  are  they  in  process  of  exporta- 
tion, nor  is  exportation  begun  until  they  are  committed 
to  the  common  carrier   for  transportation   out   of  the 
State  to  the  State  of  their  destination,  or  have  started 
on  their  ultimate  passage  to  that  State.'  116  U.  S.  517, 
525.    'But  this  movement  (that  is,  interstate  commerce 
movement)  does  not  begin  until  the  articles  have  been 
shipped   or  started  for  transportation  from   one  State 
to  the  other.     The  carrvang  of  them  in  carts  or  other 
vehicles,  or  even  floating  them,  to  the  depot  where  the 
journey  is  to   commence   is  no  part   of  that   journey. 
.     .     .     Until  actually  launched  on  its  way  to  another 
State,  or  committed  to  a  common  carrier  for  transpor- 
tation to   such  State,  its  destination  is  not  fixed  and 
certain.    It  may  be  sold  or  otherwise  disposed  of  within 

47.  Bay  v.  Merrill  &  Ring  Log-  v.  Marysville  &  N.  R.  Co.,  243  U. 
ging  Co.,  243  U.  S.  40,  61  L.  Ed.  S.  36,  61  L.  Ed.  578,  37  Sup.  Ct. 
580,   37   Sup.   Ct.   376;     McCluskey      374. 


§  4G0]  Employes  Subject  to  Act.  797 

the  State,  and  never  put  in  course  of  transportation  out 
of  the  State.'  116  U.  S.  517,  528.  After  pointing  out 
that  these  rulings  had  not  been  modified,  but  on  the 
contrary  had  been  re-affirmed  by  tlie  subsequent  cases 
relied  ui)on  by  the  plaintiff  in  error  (Texas  &  New 
Orleans  K.  R.  Co.  v.  Sabine  Tram  Co.,  227  U.  S.  Ill; 
Louisiana  Railroad  Commission  v.  Texas  &  Pacific  Ry. 
Co.,  229  U.  S.  336;  Southern  Pacific  Terminal  Co.  v. 
Interstate  Commerce  Commission,  219  U.  S.  498;  Ohio 
Railroad  Commission  v.  Worthington,  225  U.  S.  101) 
the  court  said:  'In  the  case  at  bar  there  was  no  initial 
shipment  of  the  goods.  The  transportation  of  the  poles 
from  the  forest  in  which  they  were  cut  to  tidewater, 
where  they  were  sold,  was  not  a  shipment.  There  was 
no  contract  of  carriage;  there  was  no  bill  of  lading; 
there  was  no  consignor  or  consignee.  The  goods  were 
not  committed  to  a  carrier.  The  defendant  Mill  Com- 
pany simply  carried  over  its  own  road,  on  its  own  cars, 
its  own  goods  to  a  market  where  it  sold  and  delivered 
them.  It  had  no  concern  with  the  subsequent  disposi- 
tion of  them.  It  was  under  no  obligation  to  deliver 
them  to  another  carrier,  and  no  other  carrier  was  under 
obligation  to  receive  them  or  carry  them  further.  The 
selling  of  the  poles  after  the  first  sale  by  the  Mill  Com- 
pany, or  whether  they  were  going  outside  of  the  State, 
depended  upon  change  or  the  exigencies  of  trade.  The 
movement  of  the  poles  did  not  become  interstate  com- 
merce until  by  the  act  of  the  purchasers  thereof  the 
poles  were  started  on  their  way  to  their  destination  in 
another  State  or  country.  The  beginning  of  the  transit 
which  constitutes  interstate  commerce  is  defined  in  Coe 
V.  Errol,  to  be  the  point  of  time  than  an  article  is  com- 
mitted to  a  carrier  for  transportation  to,  the  State  of 
its  destination,  or  started  on  its  ultimate  passage.  Gen- 
eral Oil  Co.  V.  Crain  209  U.  S.  211,  229.  The  conclusion 
of  the  court  below  that  the  defendants  were  not  en- 
gaged in  interstate  or  foreign  commerce  when  the  ac- 
cident occurred  is,  we  think,  clearly  demonstrated  by 
the  reasoning  bv  which  it  sustained  its  conclusion  and 


7i96  Injuries  to  Interstate  Employes.         [^  460 

the  authorities  upon  which  it  relied   as  above    stated, 
and  its  judgment  should  be  afifirmed." 

§  461.  When  Questions  of  Employment  in  Inter- 
state should  be  Submitted  to  Jury.  AVhere,  under  all 
the  evidence  in  the  case,  any  essential  matter  bearing  on 
the  question  of  whether  the  employe  was  at  the  time 
of  the  injury  engaged  in  interstate  commerce,  is  in 
doubt,  the  question  should  be  submitted  to  the  jury 
under  proper  instructions.*^  In  an  action  for  damages 
under  the  federal  act  the  plaintiff  may  state  a  cause 
of  action  under  one  count  under  the  state  law  and  in 
another  count  under  the  federal  act  and  if  the  evidence 
is  such  at  the  close  of  the  introduction  of  the  testimony 
that  it  is  doubtful  in  which  commerce  he  was  engaged, 
it  becomes  a  mixed  question  of  law  and  fact  to  be  sub- 
mitted to  the  jury  under  proper  instructions."  But  the 
Supreme  Court  of  Oregon  held  that  it  was  error  to  sub- 
mit to  the  jury  whether  the  common  law,  state  law  or 
federal  act,  applied.^" 

If  it  appears  at  the  close  of  the  evidence  as  a 
matter  of  law  which  statute  applies,  no  doubt  it  would 
be  error  to  submit  the  question  to  the  jury  as  the  court 
should  pass  on  all  questions  of  law;''  but  if  the  evidence 

48.  North  Carolina  R.  Co.  v.  Georgia.  Macon,  D.  &  S.  R.  Co. 
Zachary,  232  U.  S.  248,  58  L.  Ed.  v.  Robinson,  19  Ga.  App.  370,  91 
591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A.       S.   E.   492. 

109,    Ann.    Cas.    1914C   159;     rev'g  Iowa.      Pelton   v.    Illinois    Cent, 

same    case    on    other    grounds    in  R.  Co.,  171  Iowa  91,  150  N.  W.  236. 

156     N.    C.    496,    72     S.     E.    858;  Kentucky.     Cincinnati,  N.   O.   & 

Southern   Pac.   Co.   v.   Vaughn,  —  t.  P.  R.  Co.  v.  Hansford,  173  Ky. 

Tex.  Civ.  App. ,  165  S.  W.  885.  ;^26,  190  S.  W.  690;    Davis'  Adm'r 

49.  Atkinson  v.  Bullard,  14  Ga.  ^  Cincinnati,  N.  O.  &  T.  P.  R. 
App.   69.    80    S.   E.   220.     See   Sec-  ^^     ^^^   j^^    ^^^   ^gg    g    ^    ^jgi 

tion  687.  infra.  Michigan.     Collins   v.    Michigan 

50.  Oberlin    v.    Oregon-Wash- 


Ccnt.    R.    Co.,    193   Mich.   303,    159 
N.  W.   535. 


ington  R.  &  Nav.  Co.,  71  Ore.  177, 
142  Pac.  554. 

51.     United   States.     Hudson    &  Minnesota.      Peery     v.      Illinois 

M.  R.  Co.  V.  lorio.  152  C.  C.  A.  641,       Cent.    R.    Co.,    123    Minn.    264,    143 
239  Fed.  855.  N.  W.  724. 


§  4G1 


Employes  Subject  to  Act. 


•99 


is  siicli  that  reasonable  men  could  draw  different  con- 
clusions as  to  whether  the  defendant  and  the  injured  em- 
ploye were  engaged  in  intrastate  commerce  or  inter- 
state commerce,  then  it  would  be  error  for  the  court  to 
decide  that  issue  as  all  questions  of  facts  should  be  sub- 
mitted to  the  jury  under  proper  charges  declaring  the 
law  applicable."  The  conflict  between  the  decisions 
cited  is  more  appareiit  than  real." 


Oklahoma.  Atchison,  T.  &  S.  F. 
Ry.  Co.  V.  Pitts,  44  Qkla.  604,  9 
N.  C.  C.  A.   545,   145   Pac.   1148. 

Pennsylvania.  Moyer  v.  Penn- 
sylvania R.  Co..  247  Pa.  210,  93 
Atl.    282. 

Texas.     Geer  v.  St.  Louis,  S.  F. 

&  T.  Ry.  Co.,  Tex.  ,  194 

S.   W.   939;     Chicago,   R.   I.   &   G. 

Ry.   Co.   V.   Cosio,   Tex.   Civ. 

App.  ,  182  S.  W.  83. 

Vermont.     Castonguay  v.  Grand 

Trunk  Ry.,  ■  Vt.  -,  100  Atl. 

908. 

Washington.  Bolch  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  90  Wash. 
47,    155    Pac.   422. 

Wisconsin.  Graber  v.  Duluth,  S. 
S.  &  A.  R.  Co.,  159  Wis.  414,  150 
N.   W.   489. 

52.  United  States.  Pennsyl- 
vania Co.  V.  Donat,  239  U.  S.  50, 
60  L.  Ed.  139.  36  Sup.  Ct.  4;  Hud- 
son &  M.  R.  Co.  V.  lorio,  152  C. 
C.  A.  641,  239  Fed.  855;  Carolina. 
C.  &  0.  R.  Co.  V.  Stroup,  152  C. 
C.  A.  125,  239  Fed.  75;  Erie  R. 
Co.  V.  Krysienski,  151  C.  C.  A. 
218,  238  Fed.  142;  Erie  R.  Co.  v 
Van  Buskirk,  143  C.  C.  A.  71,  228 
Fed.  489;  Pennsylvania  Co.  v. 
Donat,  139  C.  C.  A.  665.  224  Fed. 
1021;  Pittsburgh,  C,  C.  &  St. 
L.  Ry.  Co.  V.  Glinn,  135  C.  C.  A. 
46.  219  Fed.  148. 

Georgia.  Macon,  D.  &  S.  R.  Co. 
V.  Robinson.  19  Ga.  App.  370,  91 
S.  E.  492. 


Iowa.  Bruckshaw  v.  Chicago,  R. 
I.  &  P.  Ry.  Co.,  173  Iowa  207,  155 
N.  W.  273;  Clark  v.  Chicago 
Great  Western  R.  Co.,  170  Iowa 
452,  152  N.  W.  035. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  v.  Hansford,  173  Ky. 
126,   190  S.  W.   690. 

Minnesota.  Cherpeski  v.  Great 
Northern  R.  Co.,  128  Minn.  360, 
]50  N.   W.   1091. 

Oklahoma.     Chicago,  R.  I.  &  P. 

R.  Co.  V.  Felder,  Okla.  , 

155   Pac.   529. 

Pennsylvania.  Falyk  v.  Penn- 
sylvania R.  Co.,  256  Pa.  397,  100 
Atl.  961. 

South  Carolina.  Kocnnecke  v. 
Seaboard  Air  Line  Ry.  Co.,  101 
S.  C.  8G,  85  S.  E.  374;  Camp  v. 
Atlanta  &  C.  Air  Line  Ry.  Co., 
100  S.  C.  294,  84  S.  E.  825;  How- 
ell V.  Atlantic  Coast  Line  R.  Co., 
99  S.  C.  417,  83  S.  E.  639. 

Washington.  Bolch  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  70  Wash.  47, 
155  Pac.  422.      . 

'Wisconsin.  Graber  v.  Duluth. 
S.  S.  &  A.  R.  Co.,  159  Wis.  414,  150 
N.  W.  489. 

53.  Patry  v.  Chicago  &  W.  I. 
Ry.  Co.,  2G5  111.  310,  106  N.  E.  843, 
rev'g  185  111.  App.  361;  Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  Pitts,  44 
Okla.  604.  9  N.  C.  C.  A.  545,  145 
Pac.    1148. 


800  Injuries  to  Interstate  Employes.         [^  462 

§  462.  Decisions  Construing  Federal  Safety  Appli- 
ance Act  not  always  Applicable  in  Construing  Employ- 
ers' Liability  Act.  In  determiniug  when  an  employe  is 
engaged  in  interstate  commerce  under  the  Federal  Em- 
ployers' Liability  Act,  some  courts  have  been  led  into 
error  by  following  federal  decisions  construing  the  Fed- 
eral Safety  Appliance  Act.  Such  decisions  may  or  may 
not  be  applicable,  depending  altogether  whether  they 
were  construing  that  act  as  it  was  before  the  amendment 
of  1903  or  since.  Prior  to  the  1903  amendment  to  the 
Safety  Appliance  Act,  it  was  necess^y  for  the  plain- 
tiff to  prove  in  order  to  recover  for  an  injury  due  to  a 
violation  of  that  law,  that  the  car  having  a  defect,  was 
at  the  time  of  the  injury  ''hauled  or  permitted  to  be 
hauled  or  used  on  its  line  in  moving  interstate  traffic." 
Decisions  construing  the  act  as  it  thus  read  would  no 
doubt  throw  light  on  similar  questions  under  the  liability 
act. 

But  since  the  amendment  of  1903,  the  Federal  Safety 
Appliance  Act  is  very  much  broader  than  the  Employers' 
Liability  Act  for  by  that  amendment  every  interstate 
railroad  is  required  to  equip  all  its  cars  as  provided  by 
the  safety  act  whether  used  in  intrastate  or  interstate 
commerce.'*     This  broad   exercise   of  power  extending 

54.     United  States.     Spokane  &  United    States    v.    Pere   Marquette 

I.   E.   R.   Co.   V.   CampbeU,   241   U.  R-     Co..     211     Fed.     220;      United 

S    497    60  L.  Ed.  1125,  36  Sup.  Ct.  States    v.    International    &    G.    N. 

683    12  N    C    C    A.  1083;    San  An-  R-  Co.,  98  C.  C.  A.  392,   174  Fed. 

tonio   &  A.   P.  R.   Co.  V.  Wagner,  638;     Wabash    R.    Co.    v.    United 

241  U    S    476    60   L.  Ed.   1110,  36  States,  93  C.  C.  A.  393,  168  Fed.  1. 

Sup    Ct.  626;     Texas  &  P.  R.  Co.  Illinois.     Devine  v.  Chicago  &  C. 

River  R.   Co.,   259   lU.   449,   102  N. 


V.  Rigsby,  241  U.  S.  33,  60  L.  Ed. 
874,  36  Sup.  Ct.  482;  Great  North- 
ern R.  Co.  V.  Otos,  239  U.  S.  349, 
60    L.    Ed.    322,    36    Sup.    Ct.    124; 


E.  803. 
Iowa.     Stearns  v.  Chicago,  R.  I. 

&  P.  R.  Co.,  166  Iowa  566,  148  N. 

W.  128. 

United  States  v.  Chicago,  B.  &  Q.  Kansas.         Thornbro  v.  Kansas 

R.  Co.,  237  U.  S.  410,  59  L.  Ed.  ^^.^^^  j^  ^  ^  ^  ^0.,  91  Kan.  684, 
1023,  35  Sup.  Ct.  634;  United  ^un.  Cas.  1915D  314,  139  Pac.  410. 
States   V.    Erie   R.    Co.,   237    U.    S.  Minnesota.         Hurley  v.  Illinois 

402,  59  L.  Ed.  1019,  35  Sup.  Ct.  cent.  R.  Co.,  133  Minn.  101,  157 
621;  Southern  R.  Co.  v.  Railroad  n.  W.  1005;  Burho  v.  Minneapolis 
Commission  of  Indiana,  236  U.  S.  &  st.  L.  R.  Co.,  121  Minn.  326,  141 
439,  59  L.  Ed.  661,  35  Sup.  Ct.  304;       N.  W.  300. 


§  462] 


Employes  Subject  to  Act. 


801 


tlie  Safety  Appliance  Act  to  all  cars  on  interstate  higli- 
ways  l)y  railroad  has  ])een  sustained  by  the  national  Su- 
preme Court.'"''  As  practically  all  railroads  in  llio  I'nited 
States  are  interstate  higliways,  the  Safety  Ai)pliance 
Act  ai)plies  to  all  cars  on  such  railroads. 

The  decisions  cited  in  the  notes,  holding  that  even 
cars  used  in  intrastate  commerce  are  included  within 
the  provisions  of  the  Safety  Appliance  Act,  have  some- 
times been  cited  as  throwing  light  on  the  proposition 
as  to  when  an  employe  is  engaged  in  interstate  commerce 
under  the  Federal  Employers'  Liability  Act.  Such  de- 
cisions are  not  applicable;  for  if  an  employe  is  injured 
while  working  on  cars  hauling  only  intrastate  traffic  on 
an  interstate  railroad  due  to  any  violation  of  the  Federal 
Safety  A])i)liance  Act,  he  has  his  remedy  under  that 
statute  although  he  was  not  engaged  at  the  time  in  inter- 
state commerce.^®  "In  many  cases  it  is  difficult,"  said 
the  court  in  Boyle  v.  Pennsylvania  R.  Co.,"  "to  find  the 
line  distinguishing  intrastate  and  interstate  commerce; 
nevertheless  the  line  exists.     It  is  the  function  of  the 


South  Carolina.  Lorick  v.  Sea- 
board Air  Line  Ry.  Co.,  102  S.  C. 
276,  Ann.  Cas.  1917D  920,  86  S.  E. 
675. 

Texas.     State  v.  Beaumont  &  G. 

N.  R.  Co.,  Tex.  Civ.  App.  — , 

183    S.    W.    120;     State   v.   Orange 

&  N.   W.   Ry.  Co.,  Tex.   Civ. 

App.  ,  181  S.  W.  494. 

The  Federal  Safety  Appliance 
Act  embraces  all  cars  used  on  any 
railroad  that  is  a  highway  of  in- 
terstate commerce,  whether  the 
particular  cars  are  at  the  time  em- 
ployed in  such  commerce  or  not. 
Ewing  V.  Coal  &  Coke  Ry.  Co.,  — 
W.  Va. ,  96  S.  E.  73. 

55.  Southern  R.  Co.  v.  Crockett, 
234  U.  S.  725,  58  L.  Ed.  1564,  34 
Sup.  Ct.  897;  Southern  R.  Co.  v. 
United  States.  222  U.  S.  20,  56  L. 
Ed.  72,  32  Sup.  Ct.  2,  3  N.  C.  C. 
A.  822;  Stearns  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  166  Iowa  566,  148  N. 


W.  128. 

56.  Southern  Ry.  Co.  v.  United 
States,  222  U.  S.  20,  56  L.  Ed.  72, 
32   Sup.   Ct.   2,   3   N.   C.   C.   A.   822. 

"The  cause  of  action  stated  in 
the  petition  does  not  seem  to  be 
one  based  upon  a  violation  of  the 
Safety  Appliance  Act.  If  it  were, 
then,  since  clearly  the  car  was 
used  'on  a  railroad  engaged  in  in- 
terstate commerce'  as  provided  in 
the  amendment  of  March  2,  1903, 
to  the  Safety  Appliance  Act,  it 
would  not  matter  whether  plain- 
tiff was  or  was  not  engaged  in  in- 
terstate commerce  at  the  very  mo- 
ment of  his  injury.  Roberts  on 
Injuries  to  Interstate  Employes, 
paragraph  50,  p.  119."  Trowbridge 
v.  Kansas  City  &  W.  B.  Ry.  Co., 
192  P.Io.  App.  52,  179  S.  W.  777. 

57.  142  C.  C.  A.  558,  228  Fed. 
266. 


1    Control    C'aiTiors 


802  Injuries  to  Interstate  Employes.         [§  462 

courts  to  maintain  the  line  of  distinction  and  to  promul- 
gate rules  by  which  it  may  be  found.  We  are  urged  in 
this  case,  however,  to  advance  a  principle  which  would 
not  aid  in  discovering  the  line  of  distinction  between 
the  two  kinds  of  commerce,  but,  we  conceive,  would  ob- 
literate it.  We  are  urged  to  this  i)osition  upon  authori- 
ty of  the  decisions  under  the  Safety  Appliance  Act  (Act 
March  2,  1893,  c.  196,  27  Stat.  531  (Comp.  St.  1913,  sees. 
8605-8612)  with  which  it  has  been  said  the  Employers' 
Liability  Act  is  in  pari  maria.  Under  the  Safety  Ap- 
pliance Act,  all  cars  of  an  interstate  railroad,  in  what- 
ever kind  of  commerce  used,  are  required  to  be  equipped 
with  safety  appliances,  upon  the  theory  that  such  uni- 
versal equipment  is  necessary  to  the  safety  of  interstate 
traffic.  It  has  therefore  been  held  in  Southern  Ry.  Co. 
V.  United  States,  222  U.  S.  20,  26,  27,  32  Sup.  Ct.  2,  56 
L.  Ed.  72,  that  a  car  used  for  intrastate  traffic  only,  when 
hauled  over  tracks  used  for  interstate  traffic,  is  within 
the  Safety  Appliance  Act.  In  the  Second  Employers' 
Liability  Act  Cases,  223  U.  S.  1,  51,  52,  32  Sup.  Ct.^  169, 
176  (56  L,  Ed.  327,  38  L.  R.  A.  (N.  S.)  44),  it  was  held 
that:  'It  is  not  a  valid  objection  that  the  act  embraces 
instances  where  the  causal  negligence  is  that  of  an  em- 
ploye engaged  in  intrastate  commerce;  for  such  negli- 
gence, when  operating  injuriously  upon  an  employe  en- 
gaged in  interstate  commerce,  has  the  same  effect  upon 
that  commerce  as  if  the  negligent  employe  were  also  en- 
gaged therein.'  Relying  upon  this  expression  and  the 
Safety  Appliance  Act  decision,  last  cited,  the  plaintiff 
in  error  urges  the  contention  that  the  effect  of  inspection 
of  an  intrastate  train  is  so  immediately  and  necessarily 
related  to  the  safe  movement  of  interstate  commerce  as 
to  be  a  part  of  it.  We  are  of  opinion  that  the  decision 
cited  under  the  Safety  Appliance  Act  may  be  considered 
as  a  logical  interpretation  of  the  means  intended  by 
Congress  to  effect  and  obtain  the  safety  to  interstate 
commerce  contemplated  by  the  Safety  Appliance  Act. 
The  decision  in  the  Second  Employers'  Liability  Cases, 
supra,  to  the  extent  in  which  it  was  cited,  dealt  only 
with  the  liability  of  employers  for  injuries  to  their  em- 


§  463]  Employes  Subject  to  Act.  803 

ployes,  and  related  only  to  tlie  matter  of  injuries  sus- 
tained by  an  employe  in  interstate  commerce,  occasioned 
by  an  employe  in  intrastate  commerce.  Neither  case  is 
authority  for  tlie  contention  so  broadly  made,  that  acts 
which  are  primarily  intrastate,  become  interstate  in  their 
nature  when  they  affect  the  safety  or  movement  of  inter- 
state commerce.  AVhile  the  movement  of  an  intrastate 
train,  like  the  use  of  an  intrastate  instrument,  may  in 
some  measure  affect  the  safe  movement  of  interstate 
commerce,  we  believe  that  in  the  present  case,  the  in- 
spection of  such  an  intrastate  train  is  so  remotely  re- 
lated to  interstate  commerce  that  under  the  tests  pre- 
scribed by  the  Supreme  Court  it  cannot  be  considered  a 
part  of  it." 

Although  the  amendatory  statute,  placing  all  cars 
used  on  interstate  railroads,  including  cars  used  thereon 
in  intrastate  trathc,  was  passed  in  1903,  the  supreme 
court  of  Pennsylvania  in  1915  erroneously  held  that  the 
Federal  Safety  Appliance  Act  was  not  applicable  unless 
the  car  was  used  in  moving  interstate  traffic.''® 

§  463.  Instances  where  Employes  were  Engaged 
in  Interstate  Commerce  but  Erroneously  Held  to  Have 
Been  Engaged  in  Intrastate  Commerce.  Since  the 
numerous  decisions  of  the  federal  Supreme  Court  con- 
struing the  clause  "while  he  is  employed  by  such  car- 
rier in  such  commerce,"  found  in  the  first  section  of  the 
act  have  been  delivered  the  uncertainty  as  to  when  rail- 
road employes  are  engaged  in  interstate  commerce  has 
been,  to  a  large  extent,  removed,  and  decisions  in  con- 
flict with  the  rulings  of  the  Supreme  Court  are  erroneous, 
for  it  is  the  final  arbiter  as  to  when  a  railroad  servant 
is  employed  in  that  commerce  within  the  control  of  the 
federal  goveiToiient.  A  few  of  these  erroneous  decisions 
will  now  be  briefly  reviewed. 

A    Georgia    Court    of    Appeals    held'^Hliat  a  member 
of  a  track  gang  repairing  a  track  on  a  railroad  carry- 

58.     Moyer   v.   Pennsylvania   R.  59.     Charleston  &  W.  C.  R.  Co. 

Co.,  247   Pa.  210,  93  Atl.   282.  v.  Anchors,  10  Ga.  App.  322,  73  S. 

E.   551. 


804  Injuries  to  Tnterstate  Employes.         [§  463 

ing  both  intrastate  and  interstate  commerce,  was  not 
engaged  in  interstate  commerce,  bnt  tliis  decision  is  con- 
trary to  the  ruling  of  the  Supreme  Court  in  the  Peder- 
sen  case.*^"  A  New  Jersey  court  held^^  that  an  employe 
unloading  new  rails  with  which  the  track  was  to  be  re- 
paired, was  not  engaged  in  interstate  commerce;  but  as- 
suming that  the  proof  in  that  case  developed  that  which 
is  true  of  practically  eveiy  railroad  in  the  United  States, 
that  interstate  and  intrastate  commerce  were  carried 
over  the  track  indiscriminately,  the  court's  ruling  was 
wrong.®^  The  same  court,  in  a  later  case,  held  that  an 
employe  was  engaged  in  intrastate  commerce  when  he 
was  clearly,  under  the  facts,  engaged  in  interstate  com- 
merce.^^  The  plaintiff  in  the  Granger  case  was  injured 
while  placing  a  cover  over  the  mechanism  of  a  switch 
which  he  had  just  oiled.  The  switch  connected  two  lines 
of  track,  one  used  for  freight  and  the  other  for  passenger 
trains  for  either  interstate  or  intrastate  business,  as  the 
necessities  of  the  railroad  company  required.  While 
so  engaged,  the  plaintiff  was  struck  by  a  car  which  was 
not,  at  the  time,  being  used  for  the  transportation  of 
freight,  nor  did  it  appear  that  the  movement  of  the  car 
had  any  relation  to  the  making  of  a  train  for  the  pur- 
pose of  engaging  in  interstate  commerce.  It  was  held 
that  the  plaintiff's  cause  of  action  was  not  governed  by 
the  federal  act  and  that  he  was  not  engaged  in  interstate 
commerce.  '  This  ruling  was  erroneous  for  the  reason 
that  the  switch  on  which  the  plaintiff  was  working  had 
a  direct  and  immediate  connection  with  interstate  com- 
merce. The  question  whether  the  car  was  being  used 
in  interstate  commerce  was  entirely  immaterial  for  the 
reason  that  the  federal  act  includes  the  causal  negligence 
of  agencies  wholly  used  in  intrastate  commerce."* 

60.  Pedersen  v.  Delaware,  L.  &  63.  Granger  v.  Pennsylvania  R. 
W.  R.  Co.,  229  U.  S.  146,  57  L.  Co.,  84  N.  J.  L.  338,  86  Atl.  264. 
Ed.  1125,  33  Sup.  Ct.  648,  3  N.  C.  64.  In  je  Second  Employers'  Li- 
C.  A.  779,  Ann.  Cas.  1914C  153.  ability  Cases,   223   U.    S.    1,   56   L. 

61.  Pierson  v.  New  York,  S.  &  Ed.  327,  32  Sup.  Ct.  169,  1  N.  C. 
W.  R.  Co.,  83  N.  J.  L.  661,  85  Atl.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44: 
233.  Colasurdo  v.  Central  R.  R.  of  New 

62.  Section  478,  infra.  Jersey,  180  Fed.  832. 


^  463] 


Employes  Subject  to  Act. 


805 


A  federal  district  court  held  that  a  cai7)eiiter  work- 
ing on  a  railroad  bridge  on  a  track  carrying  both  kinds 
of  commerce,  was  not  engaged  in  interstate  commerce 
within  the  meaning  of  the  federal  Employers'  Liability 
Act;®°  but  this  case  has  long  since  been  overruled.""  The 
supreme  court  of  Nebraska  decided  that  an  engineer 
running  a  ''light"  engine  between  two  points  in  that 
state,  which,  defendant  claimed,  was  ultimately  destined 
to  a  point  in  another  state,  was  not  engaged  in  inter- 
state commerce."^  But  a  contrary  conclusion  was  reached 
by  the  federal  Supreme  Court  in  the  same  case."* 


65.  Taylor  v.  Southern  Ry.  Co., 
178  Fed.  380. 

66.  Section  469,  infra. 

67.  Wright  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  94  Neb.  317,  143  N.  W. 
220. 

68.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Wright,  239  U.  S.  548,  60  L. 
Ed.  431,  36  Sup.  Ct.  185,  in  which 
Mr.  .Justice  Van  Devanter  said: 
"It  is  entirely  clear  that  taking 
the  road  engine  from  Phillips- 
burg,  Kansas,  to  Council  Bluffs. 
Iowa,  was  an  act  of  interstate 
commerce,  and  that  the  intestate, 
while  participating  in  that  act, 
was  employed  in  such  commerce. 
That  the  engine  was  not  in  com- 
mercial use  but  merely  on  the  way 
to  a  repair  shop  is  immaterial. 
It  was  being  taken  from  one  State 
to  another  and  this  was  the  true 
test  of  whether  it  was  moving  in 
interstate  commerce.  See  North 
Carolina  R.  R.  v.  Zachary,  232  U. 
S.  248,  259.  The  courts  of  the 
State  rested  their  decision  to  the 
contrary  upon  t"he  train  order  un- 
der which  the  intestate  was  pro- 
ceeding and  upon  the  decisions  in 
Chicago  &  Northwestern  Ry.  v. 
United  States.  168  Fed.  Rep.  236, 
and  United  States  v.  Rio  Grande 
Western  Ry..  174  Fed.  Rep.  399. 
In     this     they     misconceived     the 


meaning  of  the  Irain  order  and 
the  effect  of  the  decisions  cited. 
The  order  was  given  by  a  division 
train  dispatcher  and  meant  that 
between  the  points  named  therein 
the  engine  would  have  the  status 
of  an  extra  train,  and  not  that  it 
was  going  merely  from  one  of 
those  points  to  the  other.  The 
cases  cited  arose  under  the  Safety 
Appliance  Acts  of  Congress  and 
what  was  decided  was  that  those 
acts  were  not  intended  to  penalize 
a  carrier  for  hauling  to  an  adja- 
cent and  convenient  place  of  re- 
pair a  car  with  defective  appli- 
ances, when  the  sole  purpose  of 
the  movement  was  to  have  the  de- 
fect corrected,  and  the  car  was 
hauled  alone  and  not  in  connec- 
tion with  other  cars  in  commer- 
cial use.  It  was  not  held  or  sug- 
gested that  such  a  hauling  from 
one  State  to  another  was  not  a 
movement  in  interstate  commerce, 
but  only  that  it  was  not  penalized 
by  those  acts.  As  the  injuries 
resulting  in  the  intestate's  death 
were  sustained  while  the  compa- 
ny was  engaged,  and  while  he  was 
employed  by  it,  in  interstate  com- 
merce, the  company's  responsibil- 
ity was  governed  by  the  Employ- 
ers' Liability  Act  of  Congress." 


806  Injuries  to  Interstate  Employes.         [^  464 

§  464.  Instances  Where  Employes  Were  Engaged 
Exclusively  in  Intrastate  Commerce  but  Erroneously 
Held  to  have  been  Engaged  in  Interstate   Commerce. 

lu  the  cases  discussed  in  the  preceding  paragraph  the 
courts  erroneously  held  that  the  employes  were  engaged 
in  intrastate  commerce.  There  are  other  cases  where 
employes  were  engaged  exclusively  in  intrastate  com- 
merce but  were  erroneously  held  by  the  courts  to  have 
been  engaged  in  interstate  commerce.  The  supreme  court 
of  Oregon  decided  that  a  member  of  a  switching  crew 
while  coupling  a  switch  engine  to  a  private  car  used 
wholly  within  the  state  in  intrastate  commerce  and  in- 
jured while  so  working,  was  employed  in  interstate  com- 
merce. The  proof,  however,  disclosed  that  the  switch- 
ing crew  was  engaged  indiscriminately  in  moving  cars 
containing  both  intrastate  and  interstate  commerce  but 
at  the  time  of  receiving  the  injury  they  were  engaged 
solely  in  moving  the  intrastate  car  mentioned.''^  Al- 
though the  decision  in  this  case  was  handed  down  after 
the  opinion  of  the  Supreme  Court  of  the  United  States 
in  the  Behrens  case,'"  that  case  was  not  called  to  the 
attention  of  the  court  and  no  doubt  a  different  conclu- 
sion would  have  been  reached  had  the  court  considered 
the  facts  in  the  light  of  the  ruling  in  the  Behrens  case. 
The  supreme  court  of  Minnesota  held  that  a  freight 
conductor  was  engaged  in  interstate  commerce  when 
under  the  facts  it  seems  that  he  was  engaged  in  intra- 
state commerce. ■^^  The  evidence  in  that  case  disclosed 
that  the  injured  conductor  was  generally  employed  in 
interstate  commerce.  But  at  the  time  he  was  injured 
in  a  head-end  collision  the  train  did  not  contain  any 
interstate  commerce  and  was  moving  between  two  points 
in  the  same  state.  At  the  time  of  the  accident  he  had 
in  his  train  the  engine,  way  car  and  also  another  dis- 

69.  Oberlin  v.  Oregon-Washing-      A.  153,  Ann.  Cas.  1914C  163. 

ton  R.  &  Nav.  Co.,  71  Ore.  177,  142  71.     Peery   v.   Illinois   Cent.   R. 

Pac.   554.  Co.,  123  Minn.  264,  143  N.  W.  724; 

70.  Illinois    Cent.    R.    Co.    v.  s.    c,    128    Minn.    119,    150    N.    W. 
Behrens,  233  U.  S.  473,  58  L.  Ed.  382,    110.3. 

1051,  34   Sup.   Ct.  646,   10  N.  C.  C. 


§  465]  Employes  Subject  to  Act.  807 

abled  locomotive.  No  facts  api)eared  as  to  tlie  use  of 
tlic  disaljlod  locomotive.  Under  these  circumstances  tlie 
conductor  is  presumed  to  liave  been  engaged  in  intra- 
state commerce /"*  and  on  wiit  of  error  to  the  United 
States  Supreme  Coui-t,  is  was  held  that  Peery  was  not, 
under  the  circumstances,  engaged  in  interstate  commerce 
for  the  reason  that  his  train  was  handling  no  interstate 
traffic  at  the  time."  In  another  case  a  federal  district 
court  held  that  a  switching  crew  generally  engaged  in 
moving  interstate  commerce  but  at  the  time  employed 
in  moving  intrastate  commerce  solely,  was  engaged  in 
interstate  commerce  within  the  meaning  of  the  federal 
act;'*  but  tiiis  case  was  reversed  when  it  reached  the 
Supreme  Court  of  the  United  States. 

§  465.  Burden  of  Proving  Interstate  Employment 
is  Upon  the  Plaintiff.  In  all  actions  for  damages  against 
common  carriers  by  railroad  under  the  Federal  Emi)loy- 
ers'  Liability  Act,  the  burden  of  proving  that  the  plain- 
tiff or  the  decedent  was,  at  the  time  of  the  injury  or 
death,  employed  in  interstate  commerce  and  that  the 
carrier  was  also  engaged  in  commerce  among  the  states, 
is  upon  the  plaintiff."^ 

72.  Section  453,  supra.  949. 

73.  Illinois  Cent.  R.  Co.  v.  Maryland.  Baltimore  &  0.  R. 
Peery,  242  U.  S.  292.  61  L.  Ed.  Co.  v.  Branson,  128  Md.  678,  98 
309,  37   Sup.  Ct.  122.  Atl.  225. 

74.  Behrens  v.  Illinois  Cent.  R.  Minnesota.  Hurley  v.  Illinois 
Co.,  192  Fed.  581.  Cent.   R.   Co.,    133   Minn.   101,    157 

75.  United  States.  Osborne  v.  N.  W.  1005,  citing  Roberts,  Inju- 
Gray,  241  U.  S.  16,  GO  L.  Ed.  865,       ries  to  Interstate  Employes. 

36  Sup.  Ct.  486;    Southern  R.  Co.  New    York.        Knowles    v.    New 

V.  Lloyd,  239  U.  S.  496,  60  L.  Ed.  York,  N.  H.  &  H.  R.  Co.,  164  N.  Y. 

402,  36  Sup.  Ct.  210;    Lucchetti  v.  App.  Div.  711,  150  N.  Y.  Supp.  99. 

Philadelphia  &  R.  Ry.  Co.,  233  Fed.  Pennsylvania.     Hench   v.    Penn- 

137.  .sylvania   R    Co.,   246   Pa.    1.   L.   R. 

Alabama.      Southern    R.    Co.    v.  A.    1915D    557,    Ann.    Cas.    1916D 

Peters,   194  Ala.  94,  69  So.  611.  230.  91  Atl.  1056. 

Indiana.  Cincinnati,  H.  &  D.  Ry.  Washington.      Tsmura    v.    Great 

Co.  V.  Gross,  Ind.  App.  ,  Northern  R.  Co..  58  Wash.  310,  108 

111    N.   E.   653.  Pac.   774. 

Kansas.     Cole  v.  Atchison.  T.  &  West  Virginia.       Easter  v.   Vir. 

S.  F.  R.  Co.,  97  Kan.  461,  155  Pac.  ginian   R.  Co.,   76   W.   Va.  383,   11 


808  Injuries  to  Intkrstate  Employes.         [§  466 

§  466.  Burden  of  Proving  Interstate  Employment 
upon  Defendant,  When.  When  an  employe  of  a  com- 
mon carrier  by  railroad  prosecutes  an  action  for  person- 
al injuries  and  predicates  a  right  of  recovery  upon  the 
laws  of  a  state  or  the  common  law,  and  the  defendant 
seeks  to  prevent  a  recovery  under  the  state  law  by  show- 
ing that  the  federal  act  controls,  it  has  the  burden  of 
proving  that  the  employe  was  engaged  in  interstate  com- 
merce at  the  time  of  the  injury.^" 

N.  C.  C.  A.  101,  86  S.  E.  37.  76.      Zavitovsky   v.   Chicago,    M. 

Wisconsin.      Zavitovsky    v.    Clii-  &  St.  P.  R.  Co.,  161  Wis.  461,  154 

cago,  M.  &  St.  P.  R.  Co.,  161  Wis.  N.  W.  974. 
461,  154  N.  W.  974. 


CHAPTER  XXIV 

Employes  Engaged  in  Construction  and  Repair  Work. 

Sec.  467.     Employes  Engaged  in  Construction  of  Instrumontalities  for 
Future  Use  in  Interstate  Commerce. 

Sec.  468.     Distinction    between    Original    Construction    Work    and    Re- 
pair or   Maintenance  of  Interstate   Highways  by   Rail. 

Sec.  4<;9.     Bridges    Workers    and    Carpenters    Employed    in    Interstate 
Commerce,  When. 

Sec.  470.     Far    Reaching    Effect    of    Pedersen    case    in    Extending    Na- 
tional Control  over  Railroad  Employes. 

Sec.  471.     Erecting   Foundation    for   New    Bridges    under    Old    Bridges 
Forming  Parts  of  Interstate  Lines. 

Sec.  472.     Removing   Bolts    from    Timbers    after    Having   Been    Taken 
Out  of  Interstate  Bridges. 

Sec.  473.     Repairing   Tracks   of   Interstate  Carriers — Section   Men   and 
Track  Laborers. 

Sec.  474.     Status  of  Laborers  Repairing  Side  Tracks,  Spur  Tracks  and 
Switches. 

Sec.  475.     Maintenance  and  Repair  of  Turntables  on   Interstate  Rail- 
roads. 

Sec.  476.     Clearing    Debris    from    Interstate    Lines    after    Wrecks    and 
Constructing  Temporary  Tracks. 

Sec.  477.     Employes  Surveying  Track   to  Improve  Condition  of  Road- 
bed. 

Sec.  478.     Employes  Handling  Rails  on  Tracks  of  Interstate  Carriers. 

Sec.  479.     Picking  up  Old  Rails  and  Storing  New  Ones  Along  Track 
for  Future  Use. 

Sec.  480.     When    Laborers    Handling    Ties    for    Common    Carriers    are 
Under  the  Federal  Act. 

Sec.  481.     Employes    Handling    Ballast,    Gravel,    Sand,    Etc.,    for    Use 
in  Repairing  Interstate  Tracks. 

Sec.  482.     Excavating  and   Deepening  Ditches  Along  Railroad   Tracks 
for  Drainage  Purposes. 

Sec.  483.     Repairing   or   Rebuilding   Depots,   Roundhouses,    Sheds,   etc. 
not  Employment  in  Interstate  Commerce. 

Sec.  484.     Employes   Working   in   Machine   and   Repair   Shops,   Round- 
houses and  Other  Like  Buildings. 

Sec.  485.     Earlier    Decisions    Overruled    by    Rulings    of    National    Su- 
preme Court  Cited  in  Two  Foregoing  Paragraphs. 

Sec.  486.     When   Car   and    Engine    Repairers   are    Employed    in    Inter- 
state Commerce. 

Sec.  487.     Employes  Repairing  Engines  and  Cars  in  Transit  or  Tem- 
porarily  Delayed. 

Sec.  488.     Status    of    Shopmen    Repairing    Empty    Cars    in    Terminal 
Yards   and   Engines   in   Roundhouses. 

(809) 


810 


Injuries  to  Interstate  Employes.         [§  467 


Sec.  489.  Subsequent  Cases  Applying  the  Doctrine  of  the  Winters 
Case  to  Car  and  Engine  Repairers. 

Sec.  490.  Differentiating  Factors  Between  Rulings  in  Winters  and 
Pedersen  Cases. 

Sec.  491.  Illustrative  Cases  in  which  Car  and  Engine  Repairs  were 
not  Employed  in  Interstate  Commerce. 

Sec.  492.  Repairing  Cars  and  Engines  Used  Exclusively  in  Inter- 
state  Commerce. 

Sec.  493.  Interstate  Status  of  Employes  Painting  Instrumentalities 
of  Commerce  Among  the   States. 

Sec.  494.  Linemen  Repairing  Telegraph  and  Telephone  Lines  of  In- 
terstate  Carriers. 

§  467.     Employes  Engaged  in  Construction  of  In- 
strumentalities for  Future  Use  in  Interstate  Commerce. 

Employes  assisting  in  the  original  construction  of  tracks, 
tunnels,  bridges,  buildings,  telegraph  lines,  engines  or 
cars  which  have  never  been  used  as  instrumentalities  of 
interstate  commerce,  are  not  employed  in  interstate  com- 
merce within  the  meaning  of  the  statute.'    An  interstate 


1.  United  States.  New  York 
Cent.  R.  Co.  v.  White,  243  U.  S. 
188,  61  L.  Ed.  667,  37  Sup.  Ct.  247, 
13  N.  C.  C.  A.  943,  L.  R.  A.  1917D 
1,  Ann.  Cas.  1917D  629;  Raymond 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  243 
U.  S.  43,  61  L.  Ed.  583,  37  Sup. 
Ct.  268;  Minneapolis  &  St.  L.  R. 
Co.  V.  Winters,  242  U.  S.  353,  61 
L.  Ed.  358.  37  Sup.  Ct.  170,  13  N. 
C.  C.  A.  1127;  Pedersen  v.  Dela- 
ware, L.  &  W.  R.  Co.,  229  U.  S. 
146,  57  L.  Ed.  1125,  33  Sup.  Ct. 
648,  3  N.  C.  C.  A.  779;  Ann.  Cas. 
1914C  153,  rev'g  117  C.  C.  A.  33, 
197  Fed.  537,  which  aff'd  184  Fed. 
737;  Raymond  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  147  C.  C.  A.  245,  233 
Fed.  239;  Canadian  Pac.  R.  Co.  v. 
Thompson,  146  C.  C.  A.  401,  232 
Fed.  353:  Bravis  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  133  C.  C.  A.  228,  217 
Fed.    234. 

Alabama.  Louisville  &  N.  R.  Co. 
V.  Carter,  195  Ala.  382,  Ann.  Cas. 
1917E  292,  70  So.  655. 

Arkansas,     Long  v.   Biddle,   124 


Ark.  127,  186  S.  W.  601. 

Indiana.  Chicago  &  E.  R.  Co.  v. 
Steele,  183  Ind.  444,  108  N.  E.  4. 
Iowa.  Ross  V.  Sheldon,  176 
Iowa  618,  154  N.  W.  499;  Clark  v. 
Chicago  Great  Western  R.  Co.,  170 
Iowa  452,   152  N.   W.   635. 

Kentucky.  Young  v.  Norfolk  & 
W.  R.  Co.,  171  Ky.  510,  188  S.  W. 
621;  Thompson  v.  Cincinnati,  N. 
O.  &  T.  P.  R.  Co..  165  Ky.  256,  Ann. 
Cas.  1917A  1266,  176  S.  W.  1006. 

Michigan.  Collins  v.  Michigan 
Cent.  R.  Co.,  193  Mich.  303,  159 
N.  W.  535. 

Missouri.  Voris  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  172  Mo.  App.  125, 
157  S.  W.  835. 

Oklahoma.  Ft.  Smith  &  W.  R. 
Co.  V.  Blevins,  35  Okla.  378,  130 
Pac.    525. 

Pennsylvania.  Glunt  v.  Pennsyl- 
vania R.  Co.,  249  Pa.  522,  95  Atl. 
109. 

Texas.     Chicago,  R.  I.  &  0.  Ry. 

Co.  V.  Trout,  Tex.  Civ.  App. 

— ,  152  S.  W.  1137. 


<§►  467]  Employes  In  Repair  Work.  811 

railroad  company  was  constructing  a  "cut-off"  so  as 
to  shorten  a  route  used  by  it  which,  when  completed, 
would  have  been  used  for  hauling  interstate  commerce. 
A  teamster  was  engaged  in  driving  a  horse  which  ])ulled 
cars  filled  with  dirt  and  rock  along  the  tiack  out  of  a 
tunnel  which  was  a  part  of  the  '*cut-off"  line.  He  was 
not  engaged  in  interstate  commerce  and  the  mere  fact 
that  the  line,  when  completed,  would  be  used  in  trans- 
porting interstate  commerce,  would  make  no  difference.^ 
In  that  case  the  court  said:  "Stripped  of  the  conclu- 
sions in  the  complaint,  we  have  the  fact  that  the  defend- 
ant is  engaged  in  constructing  a  'cut-off'  on  its  line  of 
road  so  as  to  shorten  the  route  used  by  it  now  and  elim- 
inate some  of  the  inconveniences,  and  possible  expense,  in 
the  operation  of  the  line  at  the  present  time.  There 
is  no  statement  that  this  line,  upon  which  the  work  is 
being  performed,  is  now  used,  but  the  complaint  in  para- 
graph 3  says,  'and  through  which,  when  completed,  the 
interstate  commerce  *  *  *  ^[\\  ^e  routed.'  The 
plaintiff  was  not  himself  engaged  upon  any  interstate 
commerce,  nor  was  he  injured  by  any  one  connected 
with  the  operation  of  any  of  the  agencies  which  actually 
transported  interstate  commerce.  The  building  of  this 
cut-off  is  a  facility  which  is  to  be  used  by  the  defend- 
ant, when  completed,  as  an  engine  or  cars,  or  any  other 
appliance  under  construction  might  be  considered  for 
use  when  completed.  Can  it  be  said  that  a  person  en- 
gaged in  the  building  of  engines  or  cars,  or  any  other 
facilities  to  be  used  by  a  common  carrier  engaged  in 
interstate  commerce,  comes  within  the  provisions  of  the 
Employers'  Liability  Act!  The  act  deals  only  with  the 
liability  of  a  carrier  engaged  in  interstate  commerce  for 
injuries  sustained  by  its  employes  while  engaged  in  such 
commerce.     Second  Employers'  Liability  Cases,  223  LT. 

West  Virginia.     McKee  v.  Ohio  2.    Jackson     v.    Chicago.     M.     & 

Valley  Elec.  R.  Co.,  78  W.  Va.  131,  St.  P.  Ry.  Co.,  210  Fed.  495.     See 

88  S.  E.  616.  dissenting    opinion    in     Grow    v. 

Wisconsin.     Sullivan  v.  Chicago,  Oregon  Short  Line  R.  Co.,  44  Utah 

M    &   St.  P.  R.  Co.,  163  Wis.  583,  160,  Ann.  Cas.  1915B  481,  138  Pac. 

158   N.  W.  321.  398. 


812  Injuries  to  Interstate  Employes.         [^  467 

S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.) 
44.  The  act  is  not  'concerned  with  the  construction  of 
tracks,  bridges,  engines,  or  cars  which  have  not  as  yet 
become  instrumentalities  in  such  commerce,  but  only 
with  the  work  of  maintaining  them  in  proper  condition 
after  they  have  become  such  instrumentalities,  and  dur- 
ing their  use  as  such.'  Pedersen  v.  Del.,  Lack.  &  West. 
R.  R.,  229  U.  S.  146,  152,  33  Sup.  Ct.  648,  57  L.  Ed.  1125. 
The  language  of  the  complaint,  'when  completed,  the 
interstate  commerce  *  *  *  will  be  routed'  through 
the  tunnel,  conclusively  shows  that  it  is  not  now  so  em- 
ploj^ed;  hence  the  act  cannot  apply,  and  Supreme  Court 
decisions  supra  are  decisive.  Tested  by  the  requirements 
of  the  act,  I  do  not  think  that  the  tunnel  was  used  as 
an  appliance  in  transporting  interstate  commerce,  nor 
was  the  plaintiff  employed  in  such  commerce.  All  of  the 
cases  cited,  I  think,  are  in  harmony  with  this  conclu- 
sion." An  employe,  assisting  in  the  construction  of  a 
second  track  along  an  existing  track  so  that,  when  com- 
pleted, the  railroad  company  might  have  a  double,  in- 
stead of,  a  single  track  railway,  was  held  to  be  engaged 
in  original  construction  work  and  therefore  not  within 
the  federal  act."  In  Chrosciel  v.  New  York  Cent.  & 
River  R.  Co.,^  the  court  held  that  a  machine  drill  runner 
drilling  holes  in  a  concrete  wall,  being  a  part  of  his  em- 
ployment in  constructing  a  new  terminal  station  for  an 
interstate  carrier,  was  employed  in  interstate  commerce 
within  the  meaning  of  the  Federal  Act;  but  the  decision 
of  the  court  is  palpably  erroneous. 

3.    Chicago  &  E.  R.  Co.  v.  Steele,  was  tlien  used  in  interstate  com- 

183  Ind    444,  108  N.  E.  4,  where-  merce,  and  the  ties  were  thrown 

in^he  court  said:    "Appellee  was  to  the  side  along  the  line  of  the 

1     ^A  ^r,  new  grade.     The  operation  of  the 

one  of  a  tram  crew  employed  on  ,     ,     .  x,  „       •      ^v 


a  work  train  engaged  in  hauling 


work    train    was    wholly    in    this 

state,  and  no  part  of  the  proposed 
railroad  ties  for  distribution  along      ^^^^^  ^^^  ^^^^  ^^^^  ^^^  ^^^  p^^_ 

the  right  of  way,  which  ties  were  ^^^^^   ^^^   ^^^^    ^^^   ^^^^^   ^^^^^^ 

intended  to  be  used  on  the  grade  j-^^^^   ^^gg^^    completed    it    was    in- 

of    the     proposed     second     track.  tended    by    appellant    to    use    the 

The  grade  was  not  then  finished.  same  in  interstate  commerce." 

The  work  train   moved  along  the  4.    174  N.  Y.  App.  Div.  175,  159 

rails  of  the  existing  track,  which  N.  Y.  Supp.  924. 


'^  468]  Employes  In  Repair  Work.  813 

§  468.     Distinction  between  Original  Construction 
Work  and  Repair  or  Maintenance  of  Interstate  High- 
ways by  Rail.     The   distiiictioii   between   original   con- 
struction work  and  the  repair  or  maintenance  of  inter- 
state highways  by  rail  is  important  under  the  statute, 
as  an  employe  engaged  in  the  former  must  look  to  the 
laws  of  the  state  while,  if  employed  in  tlie  latter,  tlie 
federal  act  governs.     Tlie  line  of  demarcation  between 
the  two  fields  of  employment  was  well  stated  by  Judge 
Evans  of  the  Iowa  Supreme  Court,  as  follows:     "The 
contention  of  the  appellant  is  that  the  work  in  which 
the   decedent  was  engaged  was  not  repair  or  mainte- 
nance work,  but  was  new  construction  work.   That  there 
may  be  a  distinction  between  repair  work  and  construc- 
tion work  is  recognized  in  the  Pedersen   Case,   supra. 
The  argument  for  appellant  is  that  the  line  and  instru- 
mentalities of  the  defendant  were  complete,  and,  as  such, 
in  repair  without  the  addition  of  new  cross-arms,  and 
without  the  proposed  addition  of  new  wires,  and  without 
the  proposed  'automatic'  system;  that,  while  the  auto- 
matic system  was  proposed  to  be  used  upon  the  line 
(and  therefore  in  interstate  commerce),  it  had  not  yet 
been  thus  used.     The  line  of  demarcation  between  re- 
j^air  work,  on  one  hand,  and  construction  work,  on  the 
otii9r,  is  not  always  easily  discernible.     Eepair  often, 
if  not  usually,  involves  more  or  less  construction   and 
substitution.     It  likewise  involves  betterment  and  im- 
provement.   The  recent  decisions  of  the  Supreme  Court 
are,  in  effect,  declaring  the  rules  of  construction  which 
shall  guide  all  the  courts  and  litigants  in  determining 
whether  the  facts  in  a  given  case  bring  it  within  the 
federal  act.     It  is  highly  desirable  that  such  rules  a^~ 
tain  as  great  a  degree  of  certainty  as  practicable,  and 
such  is  the  manifest  aim  of  the  high  court.     To  such 
end  the  distinction  between  'repair'  and  'construction' 
work  must  not  be  drawn  too  fine.     The  trend   of  the 
cases  thus  far  decided  indicate  that  labor  and  better- 
ment upon  an  interstate  line  of  railway  will  uot  be  deem- 
ed as  new  construction  work  unless  it  is  clearly  such. 
That  is  to  say,  mere  doubt  will  be  resolved  in  favor  of 


814 


Injuries  to  Interstate  Employes.         [^  468 


'repair  aud  maintenance.'  Tlie  substitution  of  a  90- 
pound  rail  for  a  60-pound  rail  partakes  of  tlie  nature 
both  of  repair  and  construction;  likewise  the  substitu- 
tion of  five  wires  for  one  or  the  addition  of  four  wires 
to  one.  In  the  case  before  us  the  new  cross-arms  were 
attached  to  the  old  poles.  They  were  intended  for  the 
support  of  the  old  wire  and  others.  They  were  not  an 
independent  construction.  They  could  not  stand  alone. 
They  had  no  function  to  perform,  except  as  a  part  of 
the  electrical  system  of  the  defendant  railway,  which 
system  was  in  actual  operation  at  the  time  of  the  in- 
jury."' 

§  469.  Bridge  Workers  and  Carpenters  Employed 
in  Interstate  Commerce,  When.  If  the  railroad  tracks 
of  a  common  carrier  are  used  indiscriminately  for  the 
purpose  of  carrying  both  interstate  and  intrastate  com- 
merce, then  bridge  workers,  painters  and  carpenters  em- 
ployed on  such  tracks  are  engaged  in  interstate  com- 
merce within  the  meaning  of  the  federal  act.**    The  Peder- 


5.  Ross  V.  Sheldon,  176  Iowa 
618,  154  N.  W.  499,  in  which  the 
court  held  that  a  lineman,  while 
working  for  an  interurban  elec- 
tric railroad  and  installing  an 
automatic  signal  system  as  a  sub- 
stitute for  a  "hand  system,"  was 
engaged  in  repair  work  within 
the  meaning  of  the  act.  To  the 
same  effect:  Glunt  v.  Pennsyl- 
vania R.  Co.,  249  Pa.  522,  95  Atl. 
109. 

6.  United  States.  Norfolk  &  W. 
R.  Co.  V.  Holbrook,  235  U.  S.  625, 
59  L.  Ed.  392,  35  Sup.  Ct.  143,  7 
N.  C.  C.  A.  814;  Pedersen  v.  Dela- 
ware, L.  &  W.  R.  Co.,  2?9  U.  S. 
146,  57  L.  Ed.  1125,  33  Sup.  Ct. 
648,  3  N.  C.  C.  A.  779,  Ann.  Cas. 
194C,  153,  rev'g  184  Fed.  737  and 
117  C.  C.  A.  33,  197  Fed.  587. 
(Lamar,  Holmes  and  Lurton,  J.  .T., 
dissenting) ;  Grand  Trunk  R.  Co. 
of  Canada  v.  Knapp,  147  C.  C.  A. 


624,  233  Fed.  950,  13  N.  C.  C.  A. 
1100;  Columbia  &  P.  S.  R.  Co.  v. 
Sauter,  139  C.  C.  A.  150,  223  Fed. 
604;  Norfolk  &  W.  R.  Co.  v.  Hol- 
brook, 131  C.  C.  A.  621,  215  Fed. 
687;  Thomson  v.  Columbia  &  P. 
S.  R.  Co.,  205  Fed.  203,  4  N.  C.  C. 
A.   925. 

Alabama.    Louisville  &  N.  R.  Co. 

V.  Blankenship,  Ala.  ,  74 

So.  960. 

Arkansas.  Long  v.  Biddle,  124 
Ark.  127,  186  S.  W.  601. 

Kansas.  Spinden  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  95  Kan.  474,  148 
Pac.  747. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Netherton,  175  Ky.  159,  193 
S.  W.  1035;  Louisville  &  N.  R.  Co. 
V.  Walker's  Adm'r,  162  Ky.  209, 
172    S.   W.    517. 

Missouri.  Mcintosh  v.  St.  Louis 
&  S.  F.  Co.,  182  Mo.  App.  288,  168 
S.  W.   821. 


"^  469]  Employes  In  Repair  Work.  815 

sen  case,  cited  in  the  notes,  was  one  of  the  first  and  lead- 
ing cases  before  the  Sni)reme  Court  of  tlie  United  States 
presenting  the  question  as  to  wlien  a  railroad  employe 
was  engaged  in  interstate  commerce  by  virtue  of  his 
employment  and  the  court  held  that  an  iron  worker  em- 
ployed in  repairing  a  bridge  on  a  railroad  track,  used 
indiscriminately  for  l)()tli  interstate  and  intrastate  com- 
merce, was  engaged  in  interstate  commerce  while  he 
was  carrying  bolts  or  rivets  from  a  tool  car  to  the  bridge 
altliough  struck  by  a  train  carrying  exclusively  intra- 
state commerce.  When  struck,  the  plaintiff  was  not 
engaged  in  removing  the  old  girder  and  inserting  the 
new  one  but  was  merely  carin-ing  to  the  place  some  of 
the  materials  to  be  used  there.  These  facts  were  pre- 
sented to  three  courts  and  three  different  conclusions 
of  law  were  drawn  from  them.  In  the  final  decision  of 
the  national  Supreme  Court,  Justices  Lamar,  Holmes 
and  Lurton  dissented.  Tlie  federal  circuit  court  in  which 
the  case  was  tried  held  that  an  injury  resulting  from  a 
co-employe  engaged  in  intrastate  commerce,  was  not 
within  the  terms  of  the  act.  The  federal  circuit  court 
of  appeals  disapproved  the  ruling  of  the  lower  court  but 
decided  that  the  plaintiff  was  not  engaged  in  interstate 
commerce.  The  Supreme  Court  disapproved  both  rulings 
and  held  that  it  was  not  essential  where  the  causal  negli- 
gence was  that  of  a  co-employe  that  he  must  also  be 
employed  in  interstate  commerce  "for,  if  the  other  con- 
ditions be  present,  the  statute  gives  a  right  of  recoverv 
for  injury  or  death  resulting  from  the  negligence  of  'any 
of  the     *     *     *     om]iloyes  of  such  carrier'  and  this  in- 

Minnesota.  Marshall  v.  Chicago,  C.    A.    947.    140   Pac.    685. 

R    I.  &  P.  R.  Co.,  131  Minn.  392,  A     bridge      carpenter,     injured 

15.5  N.  W.  208.  M-hile    acting    as    a    member    of   a 

Oklahoma.     Ft.   Smith  &  W.   R.  crew  in  charge  of  a  work  train  on 

Co.  V.  Holcombe,  Okla.  ,  which   was  a  pile   driver,   service 

158  Pac.  633.  water   tank,   etc.,    on   the   way   to 

South    Carolina.      Camp    v.    At-  repair  a   railway  bridge  used   for 

lanta  &  C.  A.  L.  R.  Co.,  100  S.  C.  the    passage    of    interstate    traffic. 

294,  84  S.  E.   825.  was    engaged    in    interstate    com- 

Washington.     Smith  v.  Northern  merce.     Grand   Trunk   Ry.   Co.  of 

Pac.  R.  Co.,  79  Wash.  448,  5  N.  C.  Canada  v.  Knapp,     supra. 


816  Injuries  to  Interstate  Employes.         [§  469 

chides  an   employe   engaged   in  intrastate   commerce." 
On  this  feature  all  the  judges  concurred.     The  court 
also  held  that  the  plaintiff  was  employed  in  interstate 
commerce,  because  the  work  of  keeping  bridges  in  re- 
pair is  so  closely  related  to  interstate  commerce  as  to 
be  in  practice  and  legal  contemplation  a  part  of  it.    Tried 
by  the  true  test,  is  the  work  in  question  a  part  of  the 
interstate  commerce  in  which  the  carrier  is  engaged,  the 
court  found  that  bridges  on  interstate  railroads,  are  as 
indispensable  to  such  commerce  as  cars  and  engines,  and 
that  the  security  and  efficiency  of  such  commerce  re- 
quires such  bridges  to  be  kept  in  repair.    In  the  minority 
opinion,  Justice  Lamar  held  that  carrying  bolts  to  be 
used  in  repairing  such  a  bridge  was  not  a  part  of  com- 
merce but  an  incident  which  precedes  it;  that  such  an 
act  was  not  commerce  in  any  sense  and  that  the  Federal 
Employers'  Liability  Act  applied  to  those  engaged  in 
transportation  and  not  to  those  employed  in  building, 
manufacturing  or  repairing.    In  holding  that  the  plain- 
tiff was  engaged   in  interstate   commerce,  Mr.  Justice 
Van  Devanter,  speaking  for  the  court  in  the  majority 
opinion,   said:     ''That  the   defendant  was   engaged   in 
interstate  commerce  is  conceded;   and   so  we  are  only 
concerned  with  the  nature  of  the  work  in  which  the 
plaintiff  was  employed  at  the  time  of  his  injury.    Among 
the  questions  which  naturally  arise  in  this  connection 
are  these:     Was  that  work  being  done  independently 
of  the  interstate  commerce  in  which  the  defendant  was 
engaged,  or  was  it  so  closely  connected  therewith  as  to 
be  a  part  of  it?     Was  its  performance  a  matter  of  in- 
difference so  far  as  that  commerce  was  concerned,  or 
was  it  in  the  nature  of  a  duty  resting  upon  the  carrier? 
The  answers  are  obvious.     Tracks  and  bridges  are  as 
indispensable  to  interstate  commerce  by  railroad  as  are 
engines  and   cars;   and   sound   economic   reasons   unite 
with  settled  rules  of  law  in  demanding  that  all  of  these 
instrumentalities  be  kept  in  repair.     The  security,  expe- 
dition, and  efficiency  of  the  commerce  depends  in  large 
measure  upon  this  being  done.    Indeed,  the  statute  now 

1    Control    Carriers    52 


<§.  469]  Employes  In  Repair  Work.  817 

before  ii8  proceeds  upon  the  theory  lliat  tlif  carrier  is 
charged  with  the  duty  of  exercising  appropriate  care  to 
prevent  or  correct  'any  defect  or  insufficiency  *  *  * 
in  its  cars,  engines,  appliances,  niacliinery,  track,  road- 
bed, works,  boats,  wharves,  or  otlier  e(iuipment'  used 
in  interstate  commerce.  But  independently  of  the  stat- 
ute, we  are  of  o]nnion  that  the  work  of  kee])ing  such 
instrumentalities  in  a  proper  state  of  repair  which  tlius 
used  is  so  closely  related  to  such  commerce  as  to  be  in 
practice  and  in  legal  contemplation  a  part  of  it.  The 
contention  to  the  contrary  proceeds  upon  the  assumption 
that  interstate  commerce  by  railroad  can  be  separated 
into  its  several  elements,  and  the  nature  of  each  deter- 
mined regardless  of  its  relation  to  others  or  the  business 
as  a  whole.  But  this  is  an  erroneous  assumption.  The 
true  test  always  is:  Is  the  work  in  question  a  i)art  of 
the  interstate  commerce  in  which  the  carrier  is  engaged? 
See  McCall  v.  California,  136  U.  S.  104,  109,  111,  34  L. 
Ed.  391,  392,  393,  3  Inters.  Com.  Rep.  181,  10  Sup.  Ct. 
Rep.  881;  Second  Emplovers'  Liability  Cases  (Mondou 
V.  New  York,  N.  H.  &  H.  R.  Co.),  223  U.  S.  6,  59,  56 
L.  Ed.  329,  350  (1  N.  C.  C.  A.  875),  38  L.R.  A.  (N.  S.) 
44,  32  Sup  Ct.  Rep.  169;  Zikos  v.  Oregon  R.  &  Nav.  Co., 
179  Fed.  893,  897,  898  (3  N.  C.  C.  A.  783n,  784) ;  Central 
R.  Co.  v.  Colasurdo,  113  C.  C.  A.  379,  192  Fed.  901  (4 
N.  C.  C.  A.  645) ;  Darr  v.  Baltimore  &  0.  R.  Co.,  197 
Fed.  665;  Northern  P.  R.  Co.  v.  Maerkl,  117  C.  C.  A. 
237,  198  Fed.  1.  Of  course,  ysb  are  not  here  concerned 
with  the  construction  of  tracks,  bridges,  engines  or  cars 
which  have  not  as  yet  become  instrumentalities  in  such 
commerce,  but  only  with  the  work  of  maintaining  them 
in  proper  condition  after,  they  have  become  such  instru- 
mentalities and  during  their  use  as  such.  True,  a  track 
or  bridge  may  be  used  in  both  interstate  and  intrastate 
commerce,  but  when  it  is  so  used  it  is  none  the  less  an 
instrumentality  of  the  former;  nor  does  its  double  use 
prevent  the  employment  of  those  who  are  engaged  in 
its  repair  or  in  keejnng  it  in  suitable  condition  for  use 
from  being  an  employment  in  interstate  commerce.  The 
point  is  made  that  the  ]~>laintiff  was  not,  at  the  time  of 


818  Injuries  to  Interstate  Employes.         [§  469 

his  injury,  engaged  in  removing  the  old  girder  and  in- 
serting the  new  one,  but  was  merely  carrying  to  the 
place  where  that  work  was  to  be  used  therein.  We  think 
there  is  no  merit  in  this.  It  was  necessary  to  the  repair 
of  the  bi-idge  that  the  materials  be  at  hand,  and  the  act 
of  taking  them  there  was  a  part  of  that  work.  In  other 
words,  it  was  a  minor  task  which  was  essentially  a  part 
of  the  larger  one,  as  is  the  case  when  an  engineer  takes 
his  engine  from  the  roundhouse  to  the  track  on  which 
are  the  cars  he  is  to  haul  in  interstate  commerce." 

§    470.    Far    Reaching    Effect  of  Pedersen  Case    in 
Extending  National  Control  over  Railroad  Employes. 

The  decision  of  the  national  Supreme  Court  in  the  Peder- 
sen case,  discussed  in  the  foregoing  paragraph,  stands 
as  a  landmark  in  the  extension  of  federal  control  and 
the  elimination  of  state  authority  over  railroad  em- 
ployes. The  specific  point  at  issue  was  the  simple  ques- 
tion whether  the  carrying  of  a  bolt  from  a  tool  car  to 
a  bridge  on  an  interstate  highway  by  rail  was  employ- 
ment in  interstate  commerce;  but  the  affirmative  answer 
to  the  question  by  the  court  with  the  ''last  guess"  in 
effect,  transferred  thousands  of  railroad  employes  from 
the  control  of  state  laws  to  the  domain  of  the  rights  and 
liabilities  created  by  the  national  statute.  By  the  princi- 
ples adopted  in  this  case  to  determine  employment  in 
interstate  commerce,  all  laborers  in  the  United  States 
repairing  or  working  upon  highways  of  interstate  com- 
merce by  rail,  including  bridges,  switches,  trestles,  tracks 
and  roadbeds  became  immune  from  the  dominion  of  state 
laws  in  so  far  as  their  rights  for  injuries  were  concerned. 

§  471.  Erecting  Foundation  for  New  Bridges  under 
Old  Bridges  Forming  Parts  of  Interstate  Lines.  A  con- 
flict of  opinion  has  arisen  among  state  courts  as  to  the 
interstate  status  of  employes  erecting  and  building  foun- 
dations for  new  bridges  under  old  bridges  constituting 
parts  of  interstate  highways  by  rail  when  employed  on 
such  new  bridges  before  they  have  become  a  part  of  or 
attached  to  the  tracks  above  them.    In  one  case  it  was 


^  472]  Employes  In  Repair  Wokk.  819 

held  that  an  employe  injured  while  excavating  under 
a  wooden  trestle  bridge  which  was  a  part  of  the  main 
line,  I'or  the  purpose  of  placing  thereunder  a  pier  for  a 
new^  steel  bridge  wliiclr  was  to  take  the  place  of  the  old 
wooden  trestle  then  used,  was  engaged  in  original  con- 
struction work  and  not  the  repair  of  an  interstate  line 
so  as  to  be  engaged  in  interstate  commerce/  A  Wash- 
ington court,  on  the  other  hand,  held  that  an  employe 
doing  quite  similar  work  was  engaged  in  interstate  com- 
merce.* In  the  Bates  case  it  appeared  that  concrete 
piers  were  being  built  under  a  wooden  bridge.  The 
piers  were  eventually  to  be  used  as  a  foundation  for  a 
new  bridge  for  a  w^ooden  bridge  then  being  used.  The 
wooden  bridge  was  continuously  used  for  carrying  inter- 
state commerce  while  the  concrete  piers  were  being  built 
underneath  it.  AVhen  the  piers  were  linished,  some  time 
after  the  accident,  the  wooden  bridge  rested  upon  them. 
An  employe  engaged  in  building  the  concrete  piers  be- 
fore being  attached  to,  or  becoming  a  part  of,  the  bridge, 
was  held  to  be  engaged  in  interstate  commerce. 

§  472.  Removing  Bolts  from  Timbers  after  Having 
Been  Taken  out  of  Interstate  Bridges.  Employes  en- 
gaged in  removing  bolts  from  timbers  which  had  con- 

7.    McKee  v.   Ohio  Valley  Elec.  Under     these     circumstances,     it 

R.   Co.,   78   W.   Va.    131,    88    S.    E.  seems    that    Kinzell's    connection 

616.  with  interstate  commerce  was  suf- 

A  laborer  employed  in  construct-  ficiently  close  to  place  him  wUH- 
ing  a  dirt  fill  beneath  a  wooden  in  the  protection  of  the  Federal 
trestle  supporting  an  interstate  act.  The  correctness  of  the  ruling 
track,  which  fill,  when  completed,  is  exceedingly  doubtful. 
was  to  be  used  to  support  the  track  A  section  man  employed  in  put- 
instead  of  the  trestle  bridge,  it  was  ting  ties  and  other  rubbish  into 
held,  could  not  maintain  an  action  a  "fill"  for  the  purpose  of  streng- 
under  the  Federal  act.  Kinzell  v.  thening  and  making  the  track  of 
Chicago,  M.  &  St.  P.  Ry.  Co.,  an  interstate  line  safer,  was  en- 
Idaho  ,  171  Pac.  1136.    At  the  gaged     in     interstate     commerce. 

time  Kinzell  was  injured,  the  fill  Ohio  Valley  E.  Ry.  Co.  v.  Brum- 

had  progressed  to  the  extent  that  field, Ky. ,  203  S.  W.  541. 

it  had  in  places  reached  the  rail-  8.    State     v.     Bates     &     Rogers 

road  ties  and  it  became  nece.ssary  Const.  Co.,  91  Wash.  181,  157  Pac. 

to  spread  the  dirt  away  from  the  482. 
track  and  thereby  widen  the  fill. 


820  Injuries  to  Interstate  Employes.         [^  472 

stitiited  a  part  of  a  bridge  on  an  interstate  line,  are  un- 
der the  protection  of  the  federal  act,  although  the  tim- 
bers had  been  removed  and  were  lying  on  the  side  of 
the  railroad  road-bed  clear  of  passing  trains.^  In  the 
cited  case,  an  employe  was  a  bridge  repairer.  At  the 
time  of  his  death,  his  duties  consisted  in  removing  drift 
bolts  from  the  bridge  timbers  so  that  the  timbers  might 
be  carried  away  and  used  in  other  bridges.  "Counsel 
point  to  the  fact  that  the  caps  or  bents  had  been  re- 
moved from  the  bridge,"  said  the  court,  "and  were 
lying  by  the  side  of  the  dump  far  enough  to  be  clear 
of  passing  trains.  For  this  reason  they  insist  that  the 
employe  was  through  with  constructing  the  bridge,  and 
that  the  work  he  was  engaged  in  at  the  time  of  his  in- 
jmy  was  not  a  part  of  interstate  commerce.  It  must 
be  admitted  that  this  is  a  border-line  case,  but  when 
tested  by  the  rule  already  laid  down  by  the  Supreme 
Court  of  the  United  States,  we  think  the  employe  was 
employed  in  interstate  commerce  at  the  time  he  received 
his  injuries.  It  will  be  remembered  that  when  the  tim- 
bers taken  from  the  bridge  are  old  and  worthless  they 
are  piled  up  and  burned.  When  they  are  sound  enough 
to  be  used  again  the  bolts  are  removed  from  them  and 
they  are  piled  up  on  the  right  of  way  and  thereafter 
carried  to  the  place  where  they  are  to  be  again  used. 
It  is  not  sufficient  that  they  should  be  moved  far  enough 
away  from  the  track  so  that  they  would  not  be  struck 
by  passing  trains.  The  work  of  constructing  and  repair- 
ing the  bridge  would  not  be  accomplished  by  removing 
the  bridge  timbers  only  this  far.  Their  presence  so  near 
the  track  would  not  only  be  a  constant  source  of  danger 
to  the  employes  engaged  in  operating  trains,  and  the 
traveling  public,  but  would  also  materially  hinder  the  em- 
ployes in  operating  the  train.  The  engineer  is  required 
to  keep  a  constant  lookout,  and  would  be  frequently  at 
a  loss  to  know  whether  the  logs  lying  so  near  the  track 
were  obstructions  on  the  track  or  not.  Again  it  will  be 
readily  seen  that  when  the  timbers  became  dry  and 
rotten  they  would  easily  catch  fire  from   the  passing 

9.    Long  V.  Biddle,  124  Ark.  127,      186  S.  W.  601. 


^  473]  Employes  In  Repair  Work.  821 

trains  and  the  fire  thus  put  out  would  endanger  the 
bridges  and  tracks  near  which  they  were  piled.  Many 
other  reasons  readily  suggest  themselves  why  it  would 
be  dangerous  to  leave  these  timbers  so  near  the  track. 
We  think  it  was  a  part  of  the  work  of  constructing  the 
bridge  to  remove  the  timbers  a  safe  distance  away  from 
the  track  after  they  were  taken  from  the  bridge,  and 
that  a  pai-t  of  this  work  consisted  in  drawing  bolts  out 
of  the  timber  so  that  they  might  be  more  easily  stacked 
and  made  ready  for  shipment.  Therefore  we  are  of  the 
opinion  that  the  deceased  was  employed  in  interstate 
commerce  at  the  time  he  was  injured,  and  the  plaintiff 
is  not  entitled  to  recover." 

§  473.  Repairing  Tracks  of  Interstate  Carriers- 
Section  men  and  Track  Laborers.  All  section  men  and 
track  laborers  while  working  on  or  repairing  any  part 
of  the  track  or  switches  used  by  a  common  carrier  by 
railroad,  indiscriminately,  for  both  interstate  and  intra- 
state commerce,  are  employed  in  interstate  commerce 
within  the  meaning  of  the  national  statute.'"     For  in- 

10.    United   States.     New    York  California,    174    Cal.    8,    ICl    Pac. 

Cent.  R.  Co.  v.  Winfield,  244  U.  S.  1139. 

147,   61   L.   Ed.   1045,   37   Sup.   Ct.  Colorado.     Denver   &   R.    G.    R. 

546;   St.  Joseph  &  G.  I.  R.  Co.  v.       Co.   v.   De  Vella,  Colo.  , 

United    States,    146    C.    C.   A.    397,  165  Pac.  254;    Denver  &  R.  G.  R. 

232   Fed.   349;    Philadelphia,   B.   &       Co.  v.  Wilson,  Colo.  ,  163 

W.  R.  Co.  V.  McConnell,  142  C.  C.  Pac.  857. 

A.  555,  228  Fed.  263;    Columbia  &  Georgia.      Southern    R.    Co.    v. 

P.  S.  R.  Co.  V.  Sauter,  139  C.  C.  A.  Puckett,  16  Ga.  App.  551,  85  S.  E. 

150,    223    Fed.    604;    Lombardo    v.  809;     Louisville    &    N.    R.    Co.    v. 

Boston  &  M.  R.  R.,  223  Fed.  427;  Kemp,  140  Ga.  657,  79  S.  E.  558; 

Tralich  v.  Chicago,  M.  &  St.  P.  Ry.  Charleston   &   W.    C.    R.     Co.     v. 

Co.,  217  Fed.  675;  San  Pedro,  L.  A.  Anchors,  10  Ga.  App.  322,  73  S.  E. 

&  S.  L.  R.  Co.  V.  Davide,  127  C.  C.  551. 

A.   454,  210   Fed.  870;    Central   R.  Indiana.     Grand  Trunk  Western 

Co.   of   New   Jersey   v.   Colasurdo,       Ry.  Co."  v.  Thrift  Trust  Co.,  

113    C.   C.    A.    379,    192    Fed.    901;       Ind.    App.    ,    115    N.    E.'  685; 

Zikos  v.  Oregon  R.  &  Nav.  Co.,  179  Chicago  &  E.  R.  Co.  v.  Steele,  183 

Fed.   893.  Ind.  444,  108  N.  E.  4;  Southern  R. 

Arkansas.        Treadway      v.      St.  Co.  v.  Howerton.  182  Ind.  208,  105 

Louis,  I.  M.  &  S.  R.  Co.,  127  Ark.  N.  E.  1025,  106  N.  E.  309. 

211,  191  S.  W.  930.  Iowa.      Clark    v.    Chicago    Great 

California.      Southern    Pac.    Co.  Western  R.  Co.,  170  Iowa  452,  152 

V.  Industrial  Ace.  Commission  of  N.  W.  635. 


822 


Injuries  to  Interstate  Employes.         [^  473 


stance,  a  section  man  on  an  interstate  railroad,  killed 
while  sweeping  snow  from  the  switches  at  a  station  be- 
tween terminals,  was  held  to  be  engaged  in  interstate 


Kansas.  Spinden  v.  Atchison. 
T.  &  S.  F.  R.  Co.,  95  Kan.  474, 
148  Pac.  747;  Land  v.  St.  Louis  & 
S.  F.  R.  Co..  95  Kan.  441,  148  Pac. 
612. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Williams'  Adm'r,  175  Ky. 
679,  194  S.  W.  920;  Jones  v.  South- 
ern Ry.  in  Kentucky,  175  Ky.  455. 
194  S.  W.  558;  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  V.  Hansford,  173 
Ky.  126,  190  S.  W.  690;  Lexington 
&  E.  R.  Co.  V.  Smith's  Adm'r,  172 
Ky.  117,  188  S.  W.  1091;  Cincin- 
nati, N.  O.  &  T.  P.  R.  Co.  V.  Clay- 
bourne's  Adm'r,  169  Ky.  315,  183 
S.  W.  903;  Cincinnati,  N.  O.  &  T. 
P.  R.  Co.  V.  Tucker,  168  Ky.  144, 
181  S.  W.  940;  Louisville  &  N.  R. 
Co.  V.  Parker's  Adm'r,  165  Ky. 
658,  177  S.  W.  465;  Louisville  & 
N.  R.  Co.  V.  Walker's  Adm'r,  1G2 
Ky.  209,  172  S.  W.  517;  Truesdell 
V.  Chesapeake  &  O.  R.  Co.,  159  Ky. 
718,  169  S.  W.  471;  Jones  v.  Chesa- 
peake  &  0.   R.   Co.,    149    Ky.   566, 

149  S.   W.   951. 

Michigan.        Salabrin     v.      Ann 

Arbor  R.  Co.,  Mich.  ,  160 

N.  W.  552;  Holmberg  v.  Lake 
Shore  &  M.  S.  R.  Co.,  188  Mich. 
605.  155  N.  W.  504. 

Minnesota.  Maijala  v.  Great 
Northern  R.  Co.,  133  Minn.  301, 
158  N.  W.  430;  Cherpeski  v.  Great 
Northern   R.   Co.,   128   Minn.    360, 

150  N.  W.  1091. 

Mississippi.  Elliott  v.  Illinois 
Cent.  R.  Co.,  Ill  Miss.  426,  71  So. 
741. 

Missouri.    Dowell  v.  Wabash  Ry. 

Co., Mo.  App. ,  190  S.  W. 

939;  Sells  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  266  Mo.  155,  181  S.  W.  106; 


Hardwick  v.  Wabash  R.  Co.,  181 
Mo.  App.  150,  168  S.  W.  328. 

Montana.  Sorenson  v.  Northern 
Pac.  R.  Co.,  53  Mont.  268,  163  Pac. 
560. 

New  Jersey.  Armbrecht  v.  Dela- 
ware, L.  &  W.  R.  Co.,  N.  J. 

L.  ,  101  Atl.  203;   Willever  v. 

Delaware,  L.  &  W.  R.  Co.,  89  N.  J. 
L.  697,  99  Atl.  321;  Willever  v. 
Delaware,  L.  &  W.  R.  Co.,  87  N.  J. 
L.  348,  94  Atl.  595;  Coyne  v.  Penn- 
sylvania R.  Co.,  87  N.  J.  L.  257, 
93  Atl.  595. 

New  York.  Rodgers  v.  New  York 
Cent.  &  H.  River  R.  Co.,  171  N.  Y. 
App.  Div.  385,  157  N.  Y.  Supp.  83; 
Bitondo  v.  New  York  Cent.  &  H. 
River  R.  Co.,  163  N.  Y.  App.  Div. 
823,  149  N.  Y.  Supp.  339;  Shanks 
v.  Delaware,  L.  &  W.  R.  Co.,  163 
N.  Y.  App.  Div.  565,  148  N.  Y. 
Supp.    1034. 

Oregon.  Evanhoff  v.  State  In- 
dustrial Accident  Commission,  78 

Ore.   503,   154  Pac.   106. 

Pennsylvania.  Waina  v.  Penn- 
sylvania Co.,  251  Pa.  213,  96  Atl. 

461. 

Texas,    Houston,  E.  &  W.  T.  Ry. 

Co.    V.    Samford,    Tex.    Civ. 

App. ,  181  S.  W.  857;  Missouri, 

K.    &   T.    Ry.     Co.     of    Texas     v. 

Mooney,  Tex.  Civ.  App.  , 

181  S.  W.  543;  Texas  &  P.  Ry.  Co. 

V.  White, Tex.  Civ.  App. , 

177  S.  W.  1185. 
Vermont.     Robie  v.  Boston  &  M. 

R.  R.,  Vt.  ,  100  Atl.  925; 

Lynch's  Adm'r  v.  Central  Vermont 

R.  Co.,  89  Vt.  363,  95  Atl.  683. 
Wisconsin.      Karras    v.    Chicago 

&  N.  W.  R.  Co.,  165  Wis.  578,  162 

N.  W.  923. 


§  474]  Employes  In  Repair  Work.  823 

commerce.^'  A  member  of  a  track  gang  engaged  in 
ballasting  a  railroad  track  used  in  transporting  freight 
and  passengers  between  different  states  was  held  to  be 
employed  in  interstate  commerce  while  so  engaged/^  A 
section  hand  injnred  wliile  placing  a  rail  in  a  side  track 
near  a  main  line  over  which  trains  carrying  interstate 
commerce  habitnally  passed,  was  held  to  be  employed 
in  interstate  commerce.'-'  A  track  walker,  at  the  time 
lie  was  struck  and  injured  by  an  intrastate  train,  was 
repairing  a  switch  on  a  track  used  for  both  intrastate 
and  interstate  commerce  and  he  was  held  to  have  a 
remedy  under  the  federal  act.'*  A  section  man  while 
driving  spikes  on  a  railroad  track  on  which  the  rail- 
road company  transported  interstate  commerce  was  de- 
clared to  be  employed  in  interstate  commerce.'^  A  sec- 
tion foreman  of  a  railroad  company  operating  a  line 
which  traversed  several  states  and  injured  through  the 
negligence  of  trainmen  operating  a  train  hauling  intei'- 
state  commerce,  was  held  to  have  a  remedy  under  the 
federal  act.'^  A  railroad  employe  engaged  in  relaying 
rails  on  a  switch  track  near  a  station  on  a  main  line 
and  over  which  interstate  commerce  was  carried,  was 
held  to  have  a  remedy  under  the  federal  act.'^  An  em- 
])loye  while  riding  upon  a  ''speeder"  and  inspecting  a 
railway  line  used  for  both  intrastate  and  interstate 
commerce,  was  engaged  in  interstate  commerce.'^ 

§  474.  Status  of  Laborers  Repairing  Side  Tracks, 
'Spur  Tracks  and  Switches.  The  federal  act  is  not  con- 
fined to  employes  repairing  main  and  branch  lines  of 
railroads.     Tjaborers  emyiloyed  in  re]iairing  s]iur  tracks, 

11.  Hardwick  v.  Wabash  R.  Co.,       Co.,   179   Fed.   89."?. 

181  Mo.  App.  l-5(),  168  S.  W.  328.  16.    Louisville    &    N.    R.    Co.    v. 

12.  San  Pedro,  L.  A.  &  S.  L.  Kemp,  140  Ga.  657,  79  S.  B.  558, 
R.  Co.  V.  Davide,  127  C.  C.  A.  454,  overruling,  in  effect,  Charleston  & 
210   Fed.   870.  W.   C.   R.   Co.   v.   Anchors.   10   Ga. 

13.  Jones    v.    Chesapeake    &    0.  App.  322,  73  S.  E.  551. 

R.  Co..  149  Ky.  566,  149  S.  W.  951.  17.    Truesdell    v.    Chesapeake    & 

14.  Colasurdo  v.  Central  R.  R.  O.  R.  Co.,  159  Ky.  718.  Itl9  S.  W. 
of  New  .Jersey,  180  Fed.  832.  aff'd       471. 

in  113  C.  C.  A.  379,  192  Fed.  901.  IS.    Anest   v.   Columbia   &   P.   S 

15.  Zikos  V.  Oregon   R.  &  Nav.       R.  Co.,  89  Wash.  609,  154  Pac.  1100. 


824  Injuries  to  Inteestate  Employes.         [^  474 

side  tracks  and  switches  are  engaged  in  interstate  com- 
merce if  such  tracks  are  used  as  adjuncts  of  interstate 
lines  in  storing  or  transporting  cars  containing  inter- 
state traffic.  This  rule  was  applied  and  an  employe  was 
held  to  have  been  engaged  in  interstate  commerce  while 
he  was  repairing  a  spur  track  leading  from  the  main 
track  to  scales  on  which  cars  loaded  with  freight  destin- 
ed to  other  states  were  weighed.'^  And  so  an  employe 
repairing  tracks  and  switches  in  a  yard  used  for  "break- 
ing np,"  storing  temporarily  and  "making  np"  trains 
which  were  devoted  to  interstate  as  well  as  to  intrastate 
commerce,  was  within  the  national  statute.^"  A  train- 
master assisting  in  unloading  gravel  along  a  side  track 
which  had  been  used  to  store  trains  bound  for  points  in 
another  state,  was  employed  in  interstate  commerce.^' 
A  section  foreman  making  repairs  upon  a  spur  track  used 
in  both  interstate  and  intrastate  commerce  was  within 
the  protection,  of  the  federal  act.^^ 

§  475.  Maintenance  and  Repair  of  Turntables  on 
Interstate  Railroads.  Employes  repairing  turntables  on 
which  engines  are  turned  in  entering  and  leaving  round- 
houses before  and  after  trips  "on  the  road"  are  sub- 
ject to  the  federal  act  if  the  engines  so  turned  are 
utilized  in  hauling  interstate  trains  or  trains  containing 
both  interstate  and  intrastate  freight.  The  status  of 
such  employes  is  within  the  principle  adopted  in  the 
Pedersen  case,^^  in  which  the  court  held  that  a  carpenter 
repairing  a  bridge  which  was  a  part  of  an  interstate  high- 
way, was  engaged  in  interstate  commerce.  While  em- 
ployes repairing  roundhouses  where  interstate  engines 
are  housed,  are  not  within  the  terms  of  the  federal  act  for 
the  reason  that  the  connection  of  such  work  it  too  re- 

19.  Dowell  V.  W^abash  Ry.  Co.,      N.  W.  635. 

Mo.  App.  ,  190  S.  W.  939.  22.      Cherry    v.    Atlantic    Coast 

See  Section  430,  supra.  Line  R.  Co., N.  C.  ,  93  S. 

20.  Willever  v.  Delaware,  L.  &      E.  783. 

W.  R.  Co.,  87  N.  .J.  L.  348,  94  Atl.  23.    Pedersen  v.  Delaware,  L.  & 

595.             '  W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed. 

21.  Clark      v.      Chicago      Great  1125,  33  Sup.  Ct.  648,  3  N.  C.  C.  A. 
Western  R.  Co.,  170  Iowa  452,  152  779,  Ann.  Cas.  1914C  153. 


•^  47G]  Employes  In  Repair  AVork.  825 

mote  from  interstate  traiispoitatioii,  it  does  not  seem 
tliat  tliis  rule  should  apply  to  turntables  for  such  instm- 
mentalities  have  as  close  and  direct  connection  with 
interstate  transportation,  when  used  in  turning  engines 
pulling  interstate  cars,  as  a  bridge  on  a  main  line.  In 
harmony  with  this  view,  it  has  been  held  that  an  em- 
ploye who  was  injured  by  the  negligent  movement  of  a 
locomotive  engine  while  he  was  repairing  a  turntable, 
was  eniployed  in  interstate  commerce."* 

§  476.  Clearing  Debris  From  Interstate  Lines  after 
Wrecks  and  Constructing  Temporary  Tracks.  Eniphjyes 
engaged  in  clearing  a  railway  line  of  debris  after  a 
wreck  so  that  interstate  trains  may  pass,  or  constructing 
temporary  tracks  around  the  scene  of  a  wreck  for  the 
same  purpose,  are  under  the  control  of  the  federal  act. 
Thus,  a  car  inspector  who  was  carrying  blocks  to  the 
scene  of  a  wreck  to  be  used  in  raising  a  wrecked  car 
so  as  to  extricate  another  employe  pinned  beneath  the 
car,  and  to  clear  the  tracks  of  the  wreckage,  was  em- 
ployed in  interstate  commerce  as  it  appeared  that  the 
track  was  a  part  of  an  interstate  line."^  And  a  work- 
man, carrying  oil  for  the  purpose  of  oiling  the  rails  at 
the  connection  of  a  main  line  with  a  temporary  track 
being  constructed  around  the  scene  of  a  wreck  so  that 
interstate  trains  would  not  be  delayed,  was  engaged  in 
interstate  commerce.^° 

24.  Chesapeake  &  O.  R.  Co.  v.  itated  interstate  transportation  on 
Kornhoff,  167  Ky.  353,  180  S.  W.  the  railroad,  and  that  consequent- 
523.  ly   he   was   engaged    in   interstate 

25.  Southern  R.  Co.  v.  Puckett,  commerce  when  injured.  We  con- 
244  U.  S.  571,  61  L.  Ed.  1321,  37  ^ur  in  this  view.  From  the  facts 
Sup.  Ct.  703,  in  which  the  court  j^^^^  j^  j^  ^^^.^  ^^^^  ^j^^  ^^^.^^^ 
said:  "The  (state)  court  held  that 
although  plaintiff's  primary  ob- 
ject may  have  been  to  rescue  his 
fellow  employee,  his  act  neverthe-  ^'^^^^"^  "P  ^^^  ^^^'  ^^^  ^ave  to 
less  was  the  first  step  in  clearing  ^^^  operation  the  character  of  iu- 
the   obstruction    from    the    tracks.  terstate  commerce." 

to  the  end  that  the  remaining  cars  26.    Denver   &   R.    G.   R.    Co.    v. 

for   train    No.    75    might   be   haul-       Wilson,  Colo.  ,  163  Pac. 

ed  over  them;  that  his  work  facil-       S57. 


of  clearing  the  tracks  entered  in- 
separably    into     the     purpose    of 


826  Injuries  to  Interstate  Employes.         [^  477 

§  477.  Employes  Surveying  Track  to  Improve  Con- 
dition of  Roadbed.  The  priuciplo  elucidated  in  the  fore- 
going paragraphs  that  the  work  of  keeping  in  repair  the 
track,  roadbed  and  other  instrumentalities  of  a  railroad 
engaged  in  interstate  commerce  is  so  closely  related  to 
interstate  commerce  as  to  be  in  practice  and  legal  con- 
templation a  part  of  it,  extends  to  the  work  of  survey- 
ing and  setting  stakes  with  a  view  of  improving  a  rail- 
road curve  by  a  slight  change  in  the  track. -^  "Prior  to 
the  day  of  the  accident,"  said  the  court  in  the  case, 
cited,  "McGuin  had  been  engaged  in  the  usual  track 
work  done  by  section  men.  On  that  day,  by  direction  of 
the  track  foreman,  he  was  working  with  Parati,  a  road 
engineer,  who  was  surveying  and  setting  stakes  with  the 
view  of  improving  a  curve  by  a  slight  change  in  the 
track.  *  *  *  ^  fg^  minutes  before  the  approach  of 
the  train,  Parati,  the  surveyor,  had  sent  McGuin  nortli 
to  a  designated  point  to  hold  a  rod  by  means  of  which 
he  intended  to  take  a  back  sight.  McGuin  started  on 
the  north-bound  track  looking  for  the  designated  sta- 
tion. When  in  a  cut  on  a  curve,  where  he  would  have 
been  able  to  see  the  approaching  train  only  661  feet,  he 
was  struck  by  the  engine  and  killed.  *  *  *  Here 
the  work  was  surveying  and  marking  the  changes  to  be 
made  in  the  position  of  the  crossties  and  rails,  so  as  to 
make  a  better  curve.  No  distinction  can  be  founded  on 
the  failure  of  the  railroad  to  complete  the  work  by 
actually  making  the  changes  contemplated.  Making  the 
survey  was  as  much  a  part  of  the  work  as  laying  the 
rails  according  to  the  survey.  The  numerous  cases  in 
which  the  work  was  on  things  which  had  not  at  the 
time  become  instrumentalities  of  interstate  commerce 
obviously  have  no  application." 

§  478.  Employes  Handling  Rails  on  Tracks  of  Inter- 
state Carriers.  The  status  of  the  employes  of  the  inter- 
state carriers  in  handling  rails  along  tracks  constituting 
interstate  highways,  depends  upon  the  closeness  of  the 
relation  of  the  work  to  interstate  commerce;  for,  if  the 

27.    Southern  R.  Co.  v.  McGuin,       1.53  C.  C.  A.   447,  240  Fed.  649. 


^  478] 


Employes  Tn  Ekpair  "Work. 


827 


particular  eiiii)loyment  at  the  tiiiio  of  an  injury,  is  not 
sucli  as  to  constitute,  in  a  practica)>le  sense,  a  pai't  of 
interstate  trans})ortation,  the  federal  Act  does  not  ap- 
ply.^® The  general  rule  is  that  an  employe  is  engaged 
in  interstate  commerce  if  the  labor  of  handling  the  rails 
is  so  closely  connected  with  interstate  commerce  as  to 
be  in  legal  contemplation,  a  part  of  it.  Employes  en- 
gaged in  taking  out  old  rails  from  a  track  over  which 
interstate  traffic  is  regularly  conveyed,  or  in  replacing 
them  with  new  rails,  are,  beyond  any  question,  within 
the  federal  statute;^''  because  such  labor  is  as  directly 


28.  Minneapolis  &  St.  L.  R.  Co. 
V.  Winters,  242  U.  S.  353,  61  L. 
Ed.  358,  37  Sup.  Ct.  170,  13  N.  C. 
C.  A.  1127;  Chicago,  B.  &  Q.  R. 
Co.  V.  Harrington,  241  U.  S.  177, 
60  L.  Ed.  941,  36  Sup.  Ct.  517,  11 
N.  C.  C.  A.  992,  aff'g  (Mo.  App.), 
180  S.  W.  443;  Shanks  v.  Dela- 
ware, L.  &  W.  R.  Co.,  239  U.  S. 
556.  60  L.  Ed.  436,  36  Sup.  Ct.  188, 
aff'g  214  N.  Y.  413,  Ann.  Cas. 
1916E  467,  108  N.  E.  644;  Dela- 
ware, L.  &  W.  R.  Co.  V.  Yurkonis, 
238  U.  S.  439,  59  L.  Ed.  1397, 
35  Sup.  Ct.  902. 

29.  United  States.  Zikos  v.  Ore- 
gon R.  &  Nav.  Co.,  179  Fed.   893. 

Arkansas.  Treadway  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  127  Ark. 
211,  191  S.  W.  930. 

Colorado.      Denver    &    R.    G.    R. 

Co.  V.   Da  Vella,  Colo.  , 

16.-  Pac.  254. 

Indiana.  Southern  Ry.  Co.  v. 
Howerton,  182  Ind.  208,  105  N. 
E.   1025,   106   N.  E.   369. 

Kentucky.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V.  Hansford,  173  Ky. 
126,  190  S.  W.  690;  Cincinnati,  N. 
O.  &  T.  P.  R.  Co.  V.  Tucker,  168 
Ky.  144,  181  S.  W.  940;  Truesdell 
V.  Chesapeake  &  O.  R.  Co.,  159  Ky. 
718.  169  S.  W.  471. 

Minnesota.  Cherpeskl  v.  Great 
Northern  R.  Co.,  128  Minn.  360, 
150  N.  W.  1091. 


New  Jersey.  Willever  v.  Dela- 
ware, L.  &  W.  R.  Co.,  87  N.  J.  L. 
348,  94  Atl.  595. 

New  York.  Bitondo  v.  New 
York  Cent.  &  H.  River  R.  Co.,  163 
N.  Y.  App.  Div.  823,  149  N.  Y. 
Supp.  339. 

Pennsylvania.  Walna  v.  Penn- 
sylvania Co.,  251  Pa.  213,  96  Atl. 
461;  Glunt  v.  Pennsylvania  R.  Co., 
249  Pa.  522.  95  Atl.  109. 

Texas.     Missouri,  K.  &  T.  R.  Co. 

of  Texas  v.  Mooney, Tex.  Civ. 

App.  ,  181  S.  W.  543. 

"A  section  hand,  employed  in 
looking  after  and  repairing  the 
track  of  a  railroad  company  en- 
gaged in  interstate  commerce, 
while  employed  in  such  work,  is 
an  employe  engaged  in  interstate 
commerce;  and,  it  being  stipulat- 
ed that  defendant  was  engaged  in 
interstate  commerce,  the  inquiry 
is:  Was  the  work  which  deceased 
was  doing  at  the  time  of  his  in- 
jury a  part  of  the  interstate  com- 
merce in  which  defendant  was  en- 
gaged? It  was  an  interstate  track 
and  roadbed,  which  defendant 
was  obliged  to  keep  in  repair  to 
move  cars  carrying  interstate  com- 
merce. Deceased,  at  the  time  of 
his  injury,  was  engaged  in  inspect- 
ing and  repairing  the  track,  as 
well  as  removing  old  rails,  which 
were  along  the  side  of.  and  which 


828  Injuries  to  Interstate  Employes.         [§  478 

and  as  closely  connected  with  interstate  commerce  as  the 
carrying  of  a  bolt  to  repair  a  bridge  regularly  nsed  in 
interstate  commerce,  and,  therefore,  within  the  influence 
of  the  rnle  that  employes  repairing  or  maintaining  the 
track  and  roadbed,  are  under  the  national  statute.^"  To 
this  extent  there  is  unanimity  of  opinion  among  the 
courts  since  the  decision  of  the  national  court  in  the 
Pedersen  case.^^ 

§  479.  Picking  up  Old  Rails  and  Storing  New  Ones 
Along  Track  for  Future  Use.  But  the  character  of  the 
emploj-ment  of  a  laborer  picking  up  old  rails  piled  along 
the  right  of  way  or  storing  or  piling  new  rails  for  future 
use,  has  not  been  specifically  adjudicated  by  the  national 
Supreme  Court,  and  there  is  apparently  a  conflict  of 
opinion  in  the  decisions  of  other  courts.  Some  courts, 
under  the  influence  of  the  doctrines  announced  in  the 
Shanks,'^  Yurkonis,''  Harrington,'*  Winters,'',  and  other 
cases  applied  to  different  facts,  have  held  that  employes 
in  so  handling  rails  are  not  engaged  in  work  which  is 
a  part  of  interstate  commerce.  For  example,  a  track- 
man in  the  employ  of  a  railroad  company,  at  the  time 
he  was  injured,  was  placing  new  rails  into  a  pit  be- 
tween two  tracks  where  the  rails  were  to  be  stored  until 
they  were  required  for  track  repairing  in  the  future. 
His  employment,  while  so  engaged,  it  was  held,  was  no 

we  think  it  fair   to   assume  were  N.  E.  644. 

taken      from      the      train.        But  33.      Delaware,  L.  &  W.  R.  Co. 

whether   this   is   a   warranted   as-  v.  Yurkonis,  238  U.  S.  439,  59  L. 

sumption    or    not    makes    no    ma-  Ed.    1397,    35    Sup.    Ct.    902,    Dis- 

terial  difference  in  this  case,  be-  missed.     Same  case,  137  C.  C.  A. 

cause  a  part  of  the  duties  of  de-  23,  220  Fed.  429. 

ceased  at  the  time,  and  in  which  34.    Chicago,  B.  &  Q.  R.  Co.  v. 

he   was   engaged,   was   to   inspect  Harrington,  241   U.   S.   177,  60  L. 

and  repair  the  track."     Denver  &  Ed.  941,  36  Sup.  Ct.  517,  11  N.  C. 

R.  G.  R.  Co.  V.  Da  Vella,  supra.  C.  A.   992,   aff'g.    (Mo.  App.),   180 

30.  Section   473,  supra.  S.  W.  443. 

31.  Section   470,  supra.  35.    Minneapolis  &  St.  L.  R.  Co. 

32.  Shanks  v.  Delaware,  L.  &  v.  Winters,  242  U.  S.  353,  61  L. 
W.  R.  Co.,  239  U.  S.  556,  60  L.  Ed.  Ed.  358,  37  Sup.  Ct.  170,  13  N.  C 
436,  36  Sup.  Ct.  188,  aff'd  214  N.  C.  A.  1127,  aff'g  131  Minn.  496. 
Y.  413,  Ann.   Cas.  1916E  467,  108  155  N.  W.  1103. 


^  479] 


Employes  In  Repair  Work. 


829 


part  of  interstate  commerce. ^"^  Similarly,  a  section  hand 
while  loading-,  upon  a  flat  cjir,  unused  rails  which  had 
theretofore  been  removed  from  the  track,  and  had  been 
left  on  the  right  of  way,  it  was  held  in  another  case, 
was  not  employed  in  interstate  commerce."  But,  on  the 
other  hand,  in  apparent  conflict  with  at  least  the  fore- 
going Kentucky  cases  cited,  the  Federal  Circuit  Court 
of  Appeals  for  the  Third  District  held  that  an  assist- 
ant foreman  of  a  track  gang  while  engaged  in  removing 
old  rails  from  where  they  had  been  left  between  the 
tracks  after  being  taken  out  a  few  days  before,  was  en- 


36.  Hudson  &  M.  R.  Co.  v. 
lorio,  152  C.  C.  A.  641,  239  Fed. 
855,  in  which  the  court  said: 
"There  is  plainly  a  difference  be- 
tween the  actual  or  imminent 
employment  of  the  bolts  in  re- 
pairing the  bridge,  as  in  the  Ped- 
ersen  Case,  and  the  mining  of  coal 
wherewith  to  run  interstate  loco- 
motives, as  in  the  Yurkonis  Case. 
Whether  such  difference  entails 
a  distinction  is  a  matter  upon 
which  opinions  might  conflict,  as 
the  dissent  in  Supreme  Court  de- 
cisions under  this  statute  clearly 
shows.  But  by  the  latest  pro- 
nouncement of  that  court  in  I\lin- 
neapolis,  etc.,  Co.  v.  Winters,  242 
U.  S.  :5.53,  37  Sup.  Ct.  170,  61  L. 
Ed.  (January  8,  1917),  it  is  in  ef- 
fect declared  that  when  one  claims 
the  benefit  of  the  act  here  invoked, 
because  of  the  character  or  em- 
ployment of  the  thing  upon  which 
he  was  working  at  the  time  of  in- 
jury, then  the  character  of  that 
thing  'as  an  instrument  of  com- 
merce depended  on  its  employ- 
ment at  the  time  (of  injury),  not 
upon  remote  probabilities,  or  up- 
on accidental  later  events.'  It 
cannot  be  said  that  the  rails  which 
lorio  was  engaged  in  storing 
against  a  use  that  was  certainly 
not    imminent,    and    might    never 


occur,  were  at  the  moment  en- 
gaged in,  or  practically  part  of, 
interstate  commerce;  for  that 
commerce  was  going  on  without 
any  present  assistance,  either 
from  lorio,  or  the  rails  on  which 
he  was  working,  or  the  men  who 
were  working  with  him.  We  there- 
fore hold  that  the  actual  employ- 
ment or  use  at  the  moment  of  in- 
jury of  the  thing  upon  which  the 
person  injured  was  working  is  the 
test  of  applicability  of  the  statute, 
under  circumstances  such  as 
shown  here.  By  that  test  plaintiff 
below  was  not  practically  engag- 
ed in  or  a  part  of  interstate  com- 
merce when  he  was  hurt,  and  the 
judgment  is  reversed." 

37.  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  V.  Hansford,  173  Ky.  126,  190 
S.  W.  690.  Said  the  Court:  "It 
will  be  observed  that  it  nowhere 
appears  that  Hansford  was  engag- 
ed, either  in  taking  out  old  rails 
or  putting  in  new  rails;  the  most 
that  can  be  said  from  the  proof 
is  that  Hansford  was  engaged  in 
loading  oH  rails  that  had,  at  some 
time,  been  taken  out  of  the  track 
and  w'ere  lying  on  the  right  of 
way."  To  the  same  effect:  Illinois 
Cent.  R.  Co.  v.  Kelly,  167  Ky.  745. 
181  S.  W.  375. 


830 


Injueies  to  Interstate  Employes. 


[§  479 


gaged  in  interstate  commerce.^^  A  similar  conclusion 
-was  readied  by  the  Circuit  Court  of  Appeals  for  the 
First  Circuit,  but  in  that  case  there  was  this  additional 
factor:  the  work  train  upon  which  the  rails  were  being 
loaded  was  in  transit,  subject  to  the  delays  of  the  work, 
from  a  point  in  Maine  to  a  point  in  Canada.^^  An  em- 
ploye assisting  in  loading  rails  on  a  flat  car  was  held 
not  to  be  within  the  protection  of  the  Federal  Act,  but 
nothing  was  shown  whether  the  rails  were  old  or  new, 
where  they  came  from,  where  they  were  taken,  or  where 
the  car  was  to  go  when  loaded/"  As  the  law  presumes, 
in  the  absence  of  evidence  to  the  contrary,  that  an  em- 
ploye is  engaged  in  intrastate  commerce,  the  decision 
of  the  court  in  this  case  was  undoubtedly  correct."  An 
appellate  court  in  New  Jersey  held  that  an  employe  was 
not  engaged  in  interstate  commerce  while  he  was  remov- 
ing old  rails  from  the  track  of  an  interstate  carrier 
and  replacing  them  with  new  ones;*"  but  the  act  of  the 


38.  Philadelphia.  B.  &  W.  R.  Co. 
V.  McConnell,  142  C.  C.  A.  555,  228 
Fed.  263,  in  which  Judge  Wool- 
ley  said:  "Here  the  work  was  not 
being  done  independently  of  the 
interstate  commerce  in  which  the 
defendant  was  engaged,  nor  was 
the  performance  of  the  work  a 
matter  of  indifference  so  far  as 
that  commerce  was  concerned. 
The  removal  of  old  rails  from  be- 
tween the  tracks  on  the  roadbed 
of  a  railroad  over  which  moves 
heavy  traffic,  both  interstate  and 
intrastate,  constitutes  keeping  the 
tracks  and  roadbed  in  suitable 
condition  for  interstate  commerce, 
and  is  as  necessary  for  the  proper 
maintenance  of  the  tracks  and 
roadbed  as  renewing  the  tracks. 
The  work  of  which  the  plaintiff's 
was  a  part,  was  the  repair  of  the 
roadbed  by  replacing  old  rails 
with  new  ones.  This  included  re- 
moving old  rails  and  installing 
new  ones.  The  work  of  removing 
old   rails  was  not  complete  when 


they  were  lifted  from  their  place 
upon  the  ties  and  tossed  upon  the 
roadbed,  but  was  complete  only 
when  they  were  carried  away 
from  the  place  where  they  lay  be- 
tween the  tracks.  The  removal  of 
old  rails  was  as  much  a  part  of 
the  repair  work  as  the  bringing 
of  new  rails  to  the  place  to  be  re- 
paired. If  this  be  true,  this  case 
is  within  the  Pedersen  Case,  and 
believing  it  to  be  true,  we  feel  that 
this  case  is  ruled  by  the  principle 
declared  by  the  Supreme  Court 
in    that  -case." 

39.  Canadian  Pac.  R.  Co.  v. 
Thompson,  146  C.  C.  A.  401,  232 
Fed.  353. 

40.  Tsmura  v.  Great  Northern 
R.  Co.,  58  Wash.  316,  108  Pac. 
774. 

41.  Osborne  v.  Gray,  241  U.  S. 
16,  60  L.  Ed.  865,  36  Sup.  Ct.  486. 
aff'g  5  Tenn.  C.  C.  A.  519. 

42.  Pierson  v.  New  York,  S.  & 
W.  R.  Co.,  83  N.  J.  L.  661,  85  Atl. 
233. 


^  480]  Employes  Tn  Repair  Work.  831 

employe  in  this  case  was  so  jilaiiily  connected  witli  inter- 
state commerce  as  to  be  in  a  direct  sense  a  part  of  it, 
and  the  decision  of  the  court  was  erroneous."  In 
another  action  under  the  Federal  Act,  it  ai)peai-ed  that 
the  i)Iaintiff,  a  section  foreman,  was  injured  while  tak- 
ing out  rails  from  an  interstate  track  and  replacing 
them  with  new  ones.  The  trial  court  submitted  the 
([uestion  to  the  jury  whether  the  plaintiif  was  employed 
in  interstate  commerce."  But  under  these  facts,  con- 
ceded by  both  parties,  the  plaintiff's  employment  in 
interstate  commerce  was  shown  as  a  legal  conclusion.  A 
section  gang  composed  of  about  30  men  was  em])loyed 
in  taking  up  old  rails  and  replacing  them  with  new  ones 
on  a  railroad  running  from  a  point  in  Utah  to  Omaha, 
Neb.  The  old  rails  were  first  placed  along  the  side  of 
the  track  and  then  removed  on  push  cars  to  scrap  piles 
about  30  yards  from  where  they  were  picked  u]).  A 
member  of  the  gang  who  was  employed,  exclusively, 
in  moving  the  old  rails  from  where  they  were  thrown 
along  the  side  of  the  track  to  the  scrap  pile,  was  held 
not  to  be  engaged  in  interstate  commerce. ''"'''  The  deci- 
sion of  the  coui-t  in  this  case  does  not  seem  to  be  sound, 
for  Perez's  work  was  but  a  part  of  the  larger  task  of 
repairing  an  interstate  line  and  the  removal  of  the  old 
rails,  as  the  work  proceeded,  to  the  scrap  pile  was  but 
an  incident  thereof. 

§  480.  When  Laborers  Handling  Ties  for  Common 
Carriers  are  Under  the  Federal  Act.  The  nature  of  the 
work  being  done  at  the  time  of  the  injury  determines 
whether  or  not  an  employe  handling  railroad  ties  is  em- 
ployed in  interstate  commerce.  That  employes  while 
taking  out  old  ties  and  putting  in  new  ties  in  a  track 
permanently  devoted  to  the  carrying  of  interstate  traf- 
fic, are  engaged  in  interstate  commerce,  is  indisputable; 

43.    Pedersen  v.  Delaware,  L.  &  44.    Cherpeski    v.    Great    N.    R. 

W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed.  Co.,  128  Minn.  360,  150  N.  W.  1091. 

1125,  33   Sup.  Ct.  648,  3  N.  C.  C.  44a.     Perez  v.  Union  P.  R.  Co., 

A.  779,  Ann.  Cas.  1914C  153,  rev'g      Utah  ,  173  Pac.  23G. 

117  C.  C.  A.  33,  197  Fed.  537. 


832 


Injuries  to  Interstate  Employes.         [<^  480 


for  the  work  of  repairing  an  interstate  track  is  a  part 
of  interstate  commerce  within  the  statnte."'^  On  the 
other  hand,  a  workman  while  employed  in  making  ties, 
would  have  no  remedy  under  the  federal  statute  as  the 
connection  of  his  work  with  interstate  commerce  would 
be  too  remote.  For  example,  a  section  laborer  was  in- 
jured while  peeling  hemlock  ties,  being  a  part  of  the 
process  of  the  manufacture  of  the  ties  intended  for 
future  use  on  an  interstate  track.  Such  work  did  not 
constitute  interstate  employment.^'^  Likewise,  a  conduct- 
or in  charge  of  a  work  train  loading  and  carrying  new 


45.  United  States.  Columbia  & 
P.  S.  R.  Co.  V.  Sauter,  139  C.  C.  A. 
150,   223   Fed.   604. 

Arkansas.  Tredway  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  127  Ark. 
211,  191  S.  W.  930. 

California.  Southern  Pac.  Co. 
V.  Industrial  Ace.  Commission  of 
California,  174  Cal.  8,  161  Pac. 
1139. 

Colorado.    Denver  &  R.  G.  R.  Co. 

V.    Wilson,    ■    Colo.    ,    163 

pac.  857. 

Indiana.     Grand  Trunk  Western 

Ry.  Co.  V.  Thrift  Trust  Co.,  

Ind.  App.  ,  115  N.  E.  685. 

Kentucky.  Louisville  &  N.  R.. 
Co.  V.  William's  Adm'r,  175  Ky. 
679,  194  S.  W.  920;  Louisville  & 
N.  R.  Co.  v.  Walker's  Adm'r,  162 
Ky.   209,   172    S.   W.    517. 

Michigan,  Salabrin  v.  Ann 
Arbor  R.  Co.,  194  Mich.  458,  160 
N.   W.   552. 

Missouri.    Dowell  v.  Wabash  Ry. 

Co.,  Mo.  App.  ,  190  S.  W. 

939;  Hardwick  v.  Wabash  R.  Co., 
181  Mo.  App.  156,  168  S.  W.  328. 

46.  Karras  v.  Chicago  &  N.  W. 
R.  Co.,  165  Wis.,  578,  162  N.  W. 
923,  in  which  the  court  said: 
"It  appears  that  the  ties  plaintiff 
was  peeling  had  been  purchased 
by  defendant  at  Watersmeet, 
Mich.,   and   shipped  to   this  track 

1    Control    Carriers    .j3 


section.  They  were  dumped  on 
piles  of  from  30  to  50  and  more 
to  be  peeled  and  subsequently  used 
where  needed  in  the  repair  of  the 
track.  They  were  so  used  during 
the  summer  and  up  to  some  time 
in  September.  Ties  with  the  bark 
on  were  not  put  into  the  track. 
Hence  in  order  to  be  fully  pre- 
pared for  track  repair  they  must 
be  peeled.  The  peeling,  there- 
fore, was  a  part  of  the  process 
of  manufacture  of  the  ties  for  the 
purpose  intended.  This  process, 
in  the  case  at  bar,  was  carried 
on  independent  of,  and  separate 
from,  a  then  immediate  use  of  the 
ties  in  track  repair.  It  was  a 
preparation  of  them  for  future 
use.  That  it  was  done  by  the  de- 
fendant upon  its  right  of  way, 
instead  of  by  others  elsewhere,  or 
that  the  ties  were  destined  for 
interstate  commerce,  cannot  con- 
stitute the  process  of  their  manu- 
facture interstate  commerce  work. 
To  constitute  that  there  must  be 
an  actual  entering  upon  or  en- 
gagement in  such  work.  A  mere 
manufacture  or  preparation  of 
material  which  is  destined  at  some 
time  in  the  future  at  some  place 
to  be  used  in  interstate  commerce 
wrok    is    not    enough." 


^  481]  Employks  In  Repair  Work.  833 

ties  from  one  point  to  another  in  the  same  state  for  tlie 
purpose  of  being  treated  in  a  tie-treating  plant  operated 
by  the  carrier,  and  to  be  thereafter  used  in  repairing 
an  interstate  track,  was  not  engaged  in  commerce  be- 
tween the  states.*^  A  section  hand  engaged  in  carrying 
ties  after  they  had  been  unloaded  from  cars  and  thrown 
besides  the  track,  and  stacking  them  beyond  a  side  track 
and  on  the  right  of  way,  where  they  were  to  remain 
until  needed  in  repairing  an  interstate  track  at  some 
future  time,  was  not  employed  in  interstate  commerce 
although  the  ties  wore  in  fact  afterwards  used  in  ro])air- 
ing  the  track.*** 

§  481.  Employes  Handling  Ballast,  Gravel,  Sand, 
Etc.,  for  Use  in  Repairing  Interstate  Tracks.  Kmployes 
engaged  in  assisting  in  moving  ballast  to  be  used  in  the 
repair  of  an  interstate  track  are  within  the  terms  of  the 
Federal  Act.  Thus,  an  engineer  on  an  extra  train  run- 
ning between  two  points  in  the  same  state  and  containing 
only  gravel  to  be  used  in  repairing  and  improving  a 
roadbed  over  which  interstate  commerce  regularly  pass- 
ed, was  employed  in  interstate  commerce.*®  For  a  great- 
er reason,  an  employe  who  was  a  member  of  a  crew  in 
charge  of  a  train-load  of  gravel  being  transported  from 
North  Dakota  to  Montana  for  the  purpose  of  repairing 
an  interstate  line,  was  held  to  be  engaged  in  interstate 
commerce.^'^    A  day  laborer  in  the  emi)loyment  of  a  rail- 

47.  Alexander  v.  Great  North-  49.  Holmberg  v.  Lake  Shore  & 
em  R.  Co.,  51  Mont.  565,  154  Pac.  M.  S.  R.  Co.,  188  Mich.  G05,  155  N. 
914.     This  decision  is  in  harmony       W.  504. 

with  the  ruling  of  the  Supreme  50.  Hein  v.  Great  Northern  R. 
Court  in  Lehigh  V.  R.  Co.  v.  Bar-  R.,  34  N.  D.  440,  159  N.  W.  14. 
low,  244  U.  S.  183,  61  L.  Ed.  1070,  Said  the  court:  "In  short  plaintiff 
37  Sup.  Ct.  515;  Chicago,  B.  &  Q.  asserts  that  in  hauling  its  own 
R.  Co.  V.  Harrington,  241  U.  S.  gravel  trains  across  the  state  line 
177,  60  L.  Ed.  941.  36  Sup.  Ct.  517,  loaded  with  gravel  procured  in 
11  N.  C.  C.  A.  992,  in  which  the  this  state  for  use  as  ballast  in 
same  rule  was  applied  to  a  local  Montana,  defendant  was  not  en- 
movement  of  company  coal  from  gaged  in  interstate  commerce,  and 
storage  tracks  to  coal  chutes.  hence   the   deceased    was   not    en- 

48.  Missouri,   K.   &   T.   Ry.   Co.  gaged  in  interstate  commerce,  and 

of  Texas  v.  Watson, Tex.  Civ.  commerce  so  as  to  make  the  pro- 

App.  ,  195  S.  W.  1177.  visions   of   the    federal   act   appli- 

1  Control  Carriers  53 


834 


Injuries  to  Interstate  Employes.         [^  481 


road  company,  who  was  at  a  liill  where  gravel  was 
loosened  by  tlie  explosion  of  dynamite^  was  not  engaged 
in  interstate  commerce  in  loading  the  gravel  npon  rail- 
road ears  although  it  was  to  be  used  in  the  re]xiir  of 
interstate  lines.^'  The  court  in  this  case  relied  upon 
Delaware,  L.  &  W.  R.  Co.  v.  Yurkonis,  238  U.  S.  439, 
59  L.  Ed.  1397,  53  Sup.  Ct.  902,  and  held  that  the  work 
was  too  remote  from  interstate  transportation. 


§  482.  Excavating  and  Deepening  Ditches  Along 
Railroad  Tracks  for  Drainage  Purposes.  A  track  over 
which  interstate  commerce  is  moving  is  an  instrumen- 
tality of  interstate  commerce.'^  When  an  employe  is  en- 
gaged in  a  service  immediately  productive  of  the  raainte- 


cable,  unless  it  be  shown  further 
that  the  gravel  was  to  he  used  for 
the  repair  of  its  main  line  carry- 
ing interstate  traffic.  Judicial 
notice  is  taken  of  geographical 
facts  and  location  of  defendant's 
railroad,  its  business  as  a  com- 
mon carrier  engaged  in  both  inter- 
state and  intrastate  traffic.  It 
is  not  necessary  that  the  proof  dis- 
close that  the  gravel  was  to  be 
used  upon  the  main  line.  It  is 
sufficient  to  invoke  the  federal  act 
if  deceased  was  operating  an  en- 
gine hauling  gravel  train  for  part 
of  a  continuous  haul  from  North 
Dakota  into  Montana.  That  fact 
alone  establishes  that  interstate 
traffic  was  being  performed  and 
carried  forward." 

51.  Yazoo    &    M.    V.    R.    Co.    v. 

Houston,  Miss.  ,   75    So. 

G90. 

52.  United  States.  Pedersen  v. 
Delaware,  L.  &  W.  R.  Co.,  229 
U.  S.  146,  .57  L.  Ed.  1125,  33  Sup. 
Ct.  648,  3  N.  C.  C.  A.  779,  Ann. 
Cas.  1914C  153;  Columbia  &  P.  S. 
R.  Co.  V.  Sauter,  139  C.  C.  A.  150, 
223  Fed.  604;  Tralich  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  217  Fed.  675; 
Central  R.  of  New  Jersey  v.  Cola- 


surdo,  113  C.  C.  A.  379,  192  Fed. 
901;  Zikos  v.  Oregon  R.  &  Nav. 
Co.,   179  Fed.  893. 

Arkansas.  Treadway  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  127  Ark. 
211,   191   S.   W.   930. 

Colorado.      Denver    &    R.    G.    R. 

Co.  V.  Wilson,  Colo.  ,  163 

Pac.   857. 

Indiana.     Grand  Trunk  Western 

Ry.  Co.  V.  Thrift  Trust  Co.,  

Ind.   App.  ,    115    N.    B.    685; 

Southern  R.  Co.  v.  Howerton,  182 
Ind.  208,  105  N.  E.  1025  (Ind. 
App.).  101  N.   E.   121. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Walker's  Adm'r,  162  Ky. 
209,  172  S.  W.  517;  Truesdell  v. 
Chesapeake  &  O.  R.  Co.,  159  Ky. 
718,   169   S.   W.   471. 

Minnesota.  Cherpeski  v.  Great 
Northern  R.  Co.,  128  Minn.  360, 
150  N.  W.  1091. 

Missouri.  Harwick  v.  Wabash 
R.  Co.,  181  Mo.  App.  156,  168  S.  W. 
328. 

New  Jersey.  Willever  v.  Dela- 
ware, L.  &  W.  R.  Co.,  87  N.  J.  L. 
:^48,  94  Atl.  595. 

Texas.     Texas   &  P.   Ry.   Co.   v. 

White,  Tex.  Civ.   App.  , 

177   S.  W.  1185. 


§483]  P]mpi/iyiuS  In  Repair  Work.  835 

nance  or  ro])air  of  intimately  eonneeted  and  essential 
features  of  interstate  commerce,  his  rights  are  governed 
by  tlie  federal  statute."  An  essential  part  of  the  rej^air 
of  railroad  tracks  is  to  keep  them  well  drained  so  that 
trains  may  pass  over  them  in  safety.  Emjjloyes  en- 
gaged in  excavating  or  deepening  ditches  along  the 
tracks  to  drain  olT  suirncc  water,  are  engaged  in  inlcr- 
state  commerce.''* 

§  483.  Repairing  or  Rebuilding  Depots,  Round- 
houses, Sheds,  etc.,  not  Employment  in  Interstate  Com- 
merce. Employes  of  common  carriers  by  railroad  in- 
jured while  reconstructing  or  repairing  such  buildings 
as  stations,  roundhouses  and  machine  shops,  have  no 
remedy  under  the  federal  act.  Their  work,  while  so  em- 
ployed, has  not  a  direct  and  immediate  connection  with 
interstate  commerce,  although  freight  sheds,  shops, 
roundhouses  and  other  like  facilities  provided  for  hand- 
ling and  discharging  interstate  freight  and  cars,  are  in 
a  remote  sense,  instrumentalities  used  in  interstate  com- 
merce. The  status  of  such  employes,  so  far  as  inter- 
state employment  is  concerned,  has  not  been  specifically 
passed  upon  by  the  United  States  Supreme  Court,  but 
it  necessarily  follows  from  the  y)rinciples  of  the  de- 
cisions cited  in  the  notes,  that  thoy  are  not  controlled 
by  the  federal  act.^^    For  example,  a  railroad  carpenter 

53.  Ex     Parte     Atlantic     Coast      S.  556,  60  L.  Ed.  436,  36  Sup.  Ct. 
Line  R.  Co.,  190  Ala.   132,   67   So.       188. 

256.  A   plumber  engaged   in  inspect- 

54.  Louisville    &    N.    R.    Co.    v.  ing  and  repairing  pipes  which  con- 

Blankenship,    Ala.    ,    74  stituted   a   part   of   the   plumbing 

So.  960.  apparatus  beneath  a  station,  was 

55.  Baltimore    &    0.    R.    Co.    v.  ^eld   to  be  engaged   in  interstate 
Branson,  242  U.  S.  623,  61  L.  Ed.  commerce.        Vollmers      v.      New 

534,  37  Sup.  Ct.  244  (mem.  dec.) ;       york  Cent.  R.  Co., N.  Y.  App. 

Minneapolis    &    St.    L.    R.    Co.    v 


Div. ,  167  N.  Y.  Supp.  426.  But 

this  decision  is  erroneous. 


Nash,  242  U.  S.  619,  61  L.  Ed.  531, 
37  Sup.  Ct.  239  (mem.  dec):  Min- 
neapolis &  St.  L.  R.  Co.  V.  Winters.  ^  carpenter  injured  while  re- 
242  U.  S.  353,  61  L.  Ed.  358.  37  Pairing  a  coal  chute  from  which 
Sup.  Ct.  170,  13  N.  C.  C.  A.  1127;  apparatus  beneath  a  station,  was 
Illinois  Cent.  R.  Co.  v.  Cousins,  "ot  engaged  in  interstate  com- 
241  U.  S.  641,  60  L.  Ed.  1216,  36  merce.      Gallagher    v.    New    York 

Sup.  Ct.  446  (mem.  dec);  Shanks      Cent.  R.  Co.,  N.  Y.  App.  Div. 

V.  Delaware,  L.  &  W^  R.  Co.,  239  C.       ,  167  N.  Y.  Supp.  480. 


836  Injuries  to  Interstate  Employes.         [^  483 

making'  repairs  to  a  coal  cliiite  and  a  ronndliouse  nsed 
for  both  kinds  of  business,  interstate  and  intrastate, 
was  not  employed  in  interstate  commerce.'''  A  carpenter 
engag'ed  in  building  an  addition  to  repair  shops  where- 
in engines  nsed  for  both  interstate  and  intrastate  com- 
merce were  repaired,  was  not  employed  in  interstate 
commerce."  In  another  case,  it  was  held  that  an  em- 
ploye repairing  a  roundhouse  where  interstate  engines. 
were  inspected,  housed  and  repaired,  had  no  remedy 
under  the  federal  act.'*  A  carpenter  riveting  a  stove 
pipe  for  a  roundhouse  where  engines  were  sheltered  for 
service  in  interstate  commerce,  was  properly  held  not 
to  have  been  engaged  in  interstate  commerce.'^  A  car- 
penter engaged  in  building  a  coal  chute  for  a  common 
carrier  engaged  in  interstate  commerce,  was  not  sub- 
ject to  the  federal  act.""  In  Nash  v.  Minneapolis  &  St. 
L.  R.  Co.,"^  the  supreme  court  of  Minnesota  held  that  a 
section  hand,  assisting  in  moving  an  outhouse  which 
was  to  be  used  as  an  appendage  to  a  station  provided 
for  the  accommodation  of  interstate  as  well  as  intra- 
state passengers,  was  engaged  in  interstate  commerce, 
but  on  writ  of  error  to  the  national  Supreme  Court,  the 
case  was  reversed  in  a  memorandum  opinion.®^ 

§  484.  Employes  Working  in  Machine  and  Repair 
Shops,  Roundhouses  and  Other  Like  Buildings.  With 
the  exception  of  employes  repairing  cars  and  engines 

56.  Kelly  V.  Pennsylvania  R.  62.  Minneapolis  &  St.  L.  R.  Co. 
Co.  151  C.  C.  A.  171.  238  Fed.  95.  v.   Nash,   242   619,   61   L.   Ed.   531, 

57.  Thompson  v.  Cincinnati,  N.  37  Sup.  Ct.  239  (mem.  dec).  The 
O.  &  T.  P.  R.  Co.,  165  Ky.  256,  judgment  was  reversed  upon  the 
Ann.  Cas.  1917A  1266,  176  S.  W.  authority  of  the  following  cases: 
1006.  Delaware,    L.    &    W.    R.    Co.    v. 

58.  Castonguay  v.  Grand  Trunk  Yurkonis,  238  U.  S.  439,  59  L.  Ed. 
Ry.  vt.  ,  100  Atl.  908.  1397,   35    Sup.   Ct.   902,   Shanks  v. 

59.  Dunn  v.   Missouri   Pac.   Ry.  Delaware,  L.  &  W.  R.  Co.,  239  U. 

Co.,  Mo.  App.  ,  190  S.  W.  St.  556,  60  L.  Ed.  436,  36  Sup.  Ct. 

966.  188,    Chicago,    B.    &   Q.    R.    Co.    v. 

60.  Voris  v.  Chicago,  M.  &  St.  P.  Harrington,  241  U.  S.  177,  60  L. 
R.  Co.,  172  Mo.  App.  125,  157  S.  Ed.  941,  36  Sup.  Ct.  517,  11  N.  C. 
W.  835.  C.  A.  992,  and  Illinois  Cent.  R.  Co. 

61.  131  Minn.  166,  154  N.  W.  v.  Cousins,  241  U.  S.  641,  60  L.  Ed. 
957.  1216,  36  Sup.  Ct.  446   (mem.  dec). 


§  484]  Emplovks  In  Rkpaiu  Work.  837 

devoted  and  assigned  crdusively  to  interstate  traffic, 
servants  of  eomnion  carriers  l)y  railroad  working  in  sueli 
places  as  roundliouses,  repair  shops,  maeliine  shops  and 
buildings  of  like  cliai-acter  maintained  l)y  railroad  com- 
panies are  not  ordinarily  gfoverned  l)y  tlie  federal  stat- 
ute, and,  if  injured,  must  look  to  the  laws  of  the  states 
for  tlieir  remedies.  This  rule  was  applied  and  an  em- 
ploye was  held  not  to  have  a  remedy  under  the  federal 
act  while  he  was  engaged  as  a  machinist  in  the  sho})  of 
an  interstate  carrier  in  taking  down  and  putting  into  a 
new  location  an  overhead  counter  shaft  through  which 
l)ower  was  communicated  to  some  of  the  machinery 
utilized  in  repairing  locomotives  used  in  interstate  trans- 
portation, although  he  was  usually  employed  in  repair- 
ing engines  used  in  both  interstate  and  intrastate  com- 
merce. The  work  of  so  altering  the  location  of  a  fixture 
in  the  shop  did  not  have  such  a  close  and  direct  relation- 
ship with  interstate  commerce  as  to  be  deemed  a  part  of 
it."'  The  supreme  court  of  Minnesota  decided  that  an 
employe  injured  by  the  negligence  of  a  fellow  servant 
while  engaged  in  wheeling  a  barrow  of  coal  to  heat  a 
shop  in  which  other  employes  were  engaged  in  making 
repairs  to  cars  that  had  been  and  were  to  be  used  in 
carrying  interstate  commerce,  was  employed  in  inter- 
state commerce,  but  on  writ  of  error  to  the  Supreme 
Court  of  the  United  States,  this  cause  was  reversed.®* 
For  similar  reasons,  an  employe  injured  while  repair- 
ing the  wall  of  a  roundhouse  where  engines  carrying 
interstate  and   iiifiaslatc  commerce  were  rei)aired   and 

63.    Shanks    v.    Delaware,    L.    &  v.  New  Orleans,  T.  &  M.  R.  Co.,  13.5 

W.  R.  Co.,  239  U.  S.  556,  60  L.  Ed.  La.    129,   G4   So.   1012. 
436,   ;^6   Sup.   Ct.   188.  64.    Illinois  Cent.  Co.  v.  Cousins, 

A  hostler  working  on  an  engine  241  U.  S.  641,  60  L.  Ed.  1216,  36 
in  a  roundhouse,  which  had  just  Sup.  Ct.  446  (mem.  dec).  In  this 
returned  from  an  intrastate  trip,  case  the  court  handed  down  a 
was  not  engaged  in  interstate  com-  memorandum  opinion,  saying: 
merce  although  the  evidence  dis-  ".ludgment  reversed  with  costs  up- 
closed  that,  on  the  previous  day,  on  the  authority  of  Delaware, 
the  engine  had  been  used  In  trans-  Lackawana  &  Western  Railro;d 
porting  interstate  commerce  and  v.  Yurkonis.  2.38  U.  S.  439;  Shanks 
it  was  generally  used  in  hauling  v.  Delaware.  Lackawana  &  West- 
both   kinds  of  freight.     La  Casse  ern  Railroad,  239  U.  S.  556." 


838  Injuries  to  Interstate  Employes.         [§  484 

housed,  was  not  engaged  in  interstate  eonunerce.""'  And 
so,  an  employe  building  a  scaffold  for  tlie  purpose  of 
whitewashing  or  painting  the  ceiling  of  a  freight  shed 
used  for  storing,  placing  and  handling  interstate  ship- 
ments of  freight,  did  not  have  a  remedy  under  the  fed- 
eral act;  for,  while  the  freight  shed  was  in  a  sense  an 
instrumentality  used  for  housing  interstate  trafftc,  the 
work  of  building  the  scaffold  possessed  too  remote  a 
comiection  with  interstate  commerce  to  be  a  part  of 
it.'"'  A  janitor  breaking  up  coal  for  a  furnace  in  the 
general  office  of  a  railroad  company  engaged  in  inter- 
state commerce,  is  not  thereby  employed  in  interstate 
commerce  within  the  federal  act.-'^  A  railway  employe 
working  in  shops  where  cars  used  in  interstate  com- 
merce were  repaired,  had  no  remedy  under  the  federal 
act  because  of  an  injury  sustained  while  assisting  in 
unloading  a  carload  of  barrels  of  paint  and  oil  to  be 
used  in  repairing  cars.*"'^  Nor  was  an  employe  w^orking 
in  a  coal  chute  assisting  in  elevating  coal,  some  of 
which  would  be  used  in  filling  the  tenders  of  interstate 
engines,  engaged  in  interstate  commerce  within  the  pur- 
view of  the  federal  act.""  In  the  Shanks  case,  cited 
supra,  the  Supreme  Court,  in  reviewing  many  of  its 
former  decisions  as  to  when  an  employe  was  engaged 
in  interstate  commerce,  said:  "The  question  for  de- 
cision is,  was  Shanks  at  the  time  of  the  injury  employed 
in  interstate  commerce  within  the  meaning  of  the  Em- 
ployers' Liability  Act?  What  his  employment  was  on 
other  occasions  is  immaterial,  for,  as  before  indicated, 
the  act  refers  to  the  service  being  rendered  when  the 

65.  Castonguay  v.  Grand  Trunk  saying,    obiter,    that    if    the    em- 

Ry.    Vt.   ,    100   Atl.    908.  ploye  had  been  repairing  the  shed 

In  this  case  the  court  followed  the  itself  he  would  have  been  engaged 

Shanks  case,  supra,  and  said:   "If  in  interstate  commerce. 

Shanks  was  not  engaged  in  inter-  67.    Great    Northern    R.    Co.    v. 

state  commerce,  Castonguay  could  King,    165    Wis.    159.    161    N.    W. 

not    have    been,    for    he    was    one  371. 

step  further  removed  from  actual  68.    Salmon  v.  Southern  R.  Co., 

transportation."  133  Tenn.  223,  180  S.  W.  165. 

66.  Killes  v.  Great  Northern  R.  69.  Zavitovsky  v.  Chicago,  M. 
Co.,  93  Wash.  416,  161  Pac.  69.  &  St.  P.  R.  Co.,  161  Wis.  461, 
The  conclusion  of  the  court  in  this  154  N.  W.  974. 

case  was  correct,  but  it  erred  in 


§  -4-841  Kmi'lovks  In  Repair  Work.  839 

injury  was  snfTcnMl.  Tlaviiit;"  in  mind  tin?  nature  and 
usual  course  of  llic  business  to  wliieli  tiie  aet  relat<'s 
and  liie  evidciil  imrpose  of  Congress  in  adopting-  the  a<'t, 
W(;  tiiink  it  speaks  of  interstate  eonuneree,  not  in  a  teeli- 
nieal  le«^ai  sense,  but  in  a  practical  one  better  suited  to 
the  occasion  (see  Swift  &  Co.  v.  United  States,  196  U. 
S.  'Mi'),  131)8),  and  tliat  tlie  true  test  of  employment  in 
such  commerce  in  the  sense  intended  is,  was  the  <'m- 
ploye  at  the  time  of  the  injury  engaged  in  interstate 
transportation  or  in  work  so  closely  related  to  it  as  to 
be  practically  a  part  of  it.  Applying  this  test,  we  have 
lield  that  the  recpiisite  employment  in  interstate  com- 
merce exists  where  a  car  repairer  is  replacing  a  draw- 
bar in  a  car  then  in  use  in  such  commerce,  Walsh  v. 
New  York,  New  Haven  &  Hartford  R.  R.,  223  U.  S.  1 ; 
where  a  fireman  is  walking  ahead  of  and  piloting 
through  several  switches  a  locomotive  which  is  to  be 
attached  to  an  interstate  train  and  to  assist  in  moving 
the  same  up  a  grade,  Norfolk  cK:  AVestern  Ry.  v.  Earnest, 
229  U.  S.  114;  where  a  workman  about  to  rej^air  a 
bridge  regulai'ly  used  in  interstate  transportation  is 
carrying  from  a  tool  car  to  the  bridge  a  sack  of  bolts 
needed  in  his  work,  Pederson  v.  Del.,  Lack  &  West.  R. 
R.,  229  U.  S.  146;  where  a  clerk  is  on  his  way  through 
a  railroad  yard  to  meet  an  inbound  interstate  freight 
train  and  to  mark  the  cars  so  the  switching  crew  will 
know  what  to  do  with  them  when  breaking  up  the  ti-aiu, 
St.  Louis,  San  Francisco  &  Texas  Ry.  v.  Scale,  229  U. 
S.  156;  where  a  fireman,  having  prepared  his  engine 
for  a  trip  in  interstate  commerce,  and  being  about  to 
start  on  his  run,  is  walking  across  adjacent  tracks  on  an 
errand  consistent  with  his  duties.  North  Carolina  R.  R. 
V.  Zachary,  232  U.  S.  248;  and  where  a  brakeman  on  a 
train  carrying  several  cars  of  interstate  and  two  of  intra- 
state freight  is  assisting  in  securely  placing  the  latter 
on  a  side  track  at  an  intermediate  station  to  the  end 
that  they  may  not  run  back  on  the  main  track  and  that 
the  train  mav  ])roceed  on  its  journey  with  the  inter- 
state freight.  New  York  Central  R.  R.  V.  Carr,  238  IT.  S. 
260.  Without  deinirting  from  this  test,  we  also  have 
held   that   the   riMpiisite   I'lnployment    in   interstate  com- 


^0  Injuries  to  Interstate  Employes.         [§  484- 

meree  does  not  exist  where  a  member  of  a  switching- 
crew,  whose  general  work  extends  to  both  interstate  and 
intrastate  traffic,  is  engaged  in  hauling  a  train  or  drag 
of  cars,  all  loaded  witli  intrastate  freight,  from  one  part 
of  a  city  to  another.  111.  Cent.  R.  R.  v.  Behrens,  233  U. 
S.  473,  and  where  an  employe  in  a  colliery  operated  by 
a  railroad  company  is  mining  coal  intended  to  be  nsed 
in  the  company's  locomotives  moving  in  interstate  com- 
merce, Del.,  Lack.  &  West.  R.  R.  v.  Yurkonis,  238  U. 
S.    439.      In    neither    instance    could    the    service    in- 
dicated be   said   to  be   interstate   transportation  or   so 
closely  related  to  it  as  to  be  practically  a  part  of  it. 
Coming  to  apply  the  test  to  the  case  in  hand,  it  is  plain 
that  Shanks  was  not  employed  in  interstate  transporta- 
tion, or  in  repairing  or  keeping  in  usable  condition  a  road- 
bed, bridge,  engine,  car  or  other  instrument  then  in  use 
in  such  transportation.    What  he  was  doing  was  altering 
the  location  of  a  fixture  in  a  machine  shop.     The  con- 
nection between  the  fixture  and  interstate  transportation 
was  remote  at  best,  for  the  only  function  of  the  fixture 
was  to  communicate  power  to  machinery  used  in  repair- 
ing parts  of  engines  some  of  which  were  used  in  such 
transportation.     This,  we  think,  demonstrates  that  the 
work  in  which  Shanks  was  engaged,  like   that  of  the 
coal  miner  in  the  Yurkonis  Case,  was  too  remote  from 
interstate  transportation  to  be  practically  a  part  of  it, 
and  therefore  that  he  was  not  employed   in  interstate 
commerce  within  the  meaning  of  the  Employers'  Lia- 
bility Act." 

§  485.  Earlier  Decisions  Overruled  by  Rulings  of 
National  Supreme  Court  Cited  in  Two  Foregoing  Para- 
graphs. Many  decisions  of  state  courts  rendered  prior 
thereto  have,  in  effect,  been  overruled  by  the  rulings  of 
the  United  States  Supreme  Court  in  the  Shanks,  Cousins, 
Nash  and  Branson  cases,  cited  in  the  two  foregoing 
paragraphs.  Among  these  decisions  that  must  now  be 
taken  to  have  applied  incorrect  rules  in  determining 
interstate  employment  are,  Newkirk  v.  Pryor,'°  in  which 

70.     (Mo.  App.),  18:3  S.  W.  682. 


§  485]  PiMPLoYKs  In  Rki'aik  Wohk.  841 

tho  court  liold  tliai  a  (*ar))('nt('r  repairing"  a  pnui])  liouse 
and  ])iimping  station,  was  en^a^ed  in  interstate  com- 
merce: Thomas  v.  Boston  &  M.  R.  R./^  in  which  the 
coni't  held  that  a  carpentei',  whih'  employed  in  movinjc^ 
dehris  from  a  roundhouse  wliicli  had  i)artially  heen 
destroyed  hy  fire,  in  order  that  a  new  roundhouse  mi^lit 
be  erected,  was  enj^am^ed  in  interstate  connnerce:  Eng- 
V.  Soutliern  Pac.  Co.,'-  wherein  the  court  held  that  a 
carpenter  emi)loyed  in  sawing  boards  and  nailinjj^  them 
in  place  on  the  wall  of  a  new  office  in  a  freight  shed, 
was  em])loyed  in  interstate  commerce;  Chrosciel  v.  New 
York  Cent.  &  H.  River  R.  Co.,"  in  which  the  court  de- 
cided that  a  drill  machine  runner,  assisting  in  the  con- 
struction of  a  railroad  station  used  for  both  interstate 
and  intrastate  traffic,  was  engaged  in  interstate  com- 
merce so  as  to  bring  his  case  within  the  exclusive  opera- 
tion of  the  federal  act. 

§  486.  When  Car  and  Engine  Repairers  are  Em- 
ployed in  Interstate  Commerce.  The  Federal  Act  is 
limited  to  employes  injured  while  engaged  in  interstate 
"commerce."  Tliis  is  a  broader  term  than  interstate 
"transportation"  which  would  probably  limit  the  ap- 
plication of  the  statute  to  employes  engaged  in  actually 
moving  trains;  but  the  field  covered  is  not  so  circum- 
scribed. Cars  and  engines  are  instrumentalities  of  com- 
merce and  within  the  power  of  Congress  to  regulate.  As 
a  general  proposition,  it  may  be  correctly  stated  that 
employes  repairing  such  engines  and  cars  are  within  tlie 
])urview  of  the  statute  if  the  cars  and  engines  are  actual- 
ly tJieu  used  in  interstate  commerce  or  in  work  so  closely 
related  thereto  as  to  l)e  in  fact  a  ])art  of  commerce  from 
one  state  to  another  or  to  ai  foreign  country.  This  prin- 
ciple is  well  established,  but  there  has  been  a  consider- 
able diversity  of  opinion  in  its  application  to  concrete 
facts.  The  conflict  arises  from  a  disagreement  as  to  when 
a  car  or  an  engine,  being  repaired,  is  in  fact  used  in  com- 
merce wnthin  the  statute.    The  status  of  an  employe,  un- 


71. 

134  C. 

C.  A.  554, 

219  Fed. 

72.  210  Fed.  92. 

180. 

73.  174  N  .Y.  App.  Div. 
N.  Y.  Supp.  924. 

175,  159 

842 


Injuries  to  Interstate  Employes.         [^  486 


der  the  Act,  depends  upon  the  use  being  made  of  tlie 
instrumentality  he  is  repairing  at  the  time  of  the  injury. 
Decisions  involving  the  interstate  employment  of  car  and 
engine  repairers  under  variable  circumstances  are  here- 
inafter reviewed. 


§  487.  Employes  Repairing  Engines  and  Cars  in 
Transit  or  Temporarily  Delayed.  IJnciuestionably  em- 
ployes of  common  carriers  by  railroad  repairing  engines 
while  being  actually  used  in  pulling  interstate  trains'^ 
or,  after  being  assigned  to  interstate  runs,  in  preparing 
til  em  for  that  purpose  even  though  not  coupled  to  the 
train,  are  engaged  in  interstate  commerce."  Similarly 
employes  repairing  cars  in  transit  and  loaded  with  inter- 
state freight,'*^  or  cars  containing  intrastate  freight  con- 
stituting a. part  of  an  interstate  train,''  or  cars  contain- 


74.  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Wright,  239  U.  S.  548,  60  L.  Ed. 
431,  36  Sup.  Ct.  185. 

75.  Chicago  &  N.  W.  R.  Co.  v. 
Bower,  241  U.  S.  470,  60  L.  Ed. 
1107,  36  Sup.  Ct.  624;  North  Caro- 
lina R.  Co.  V.  Zachary,  232  U.  S. 
248,  58  L.  Ed.  591,  34  Sup.  Ct.  305, 
9  N.  C.  C.  A.  109,  Ann.  Cas.  1914C 
1.79. 

76.  United  States.  Walsh  v. 
New  York,  N.  H.  &  H.  R.  Co.,  223 
U.  S.  1,  56  L.  Ed.  327,  32  Sup.  Ct. 
169,  1  N.  C.  C.  A.  875.  38  L.  R.  A. 
(N.  S.)  44;  Johnson  v.  Southern 
Pac.  Co.,  196  U.  S.  1,  49  L.  Ed. 
363,  25  Sup.  Ct.  158;  Baltimore  & 
O.  R.  Co.  V.  Darr,  124  C.  C.  A.  565, 
204  Fed.  751,  47  L.  R.  A.  (N.  S.) 
4;  United  States  v.  Wheeling  & 
L.  E.  R.  Co.,  167  Fed.  198;  United 
States  V.  Central  of  Georgia  Ry. 
Co.,  157  Fed.  893;  United  States 
V.  Colorado  &  N.  W.  R.  Co.,  85  C. 
C.  A.  27,  157  Fed.  321,  15  L.  R.  A. 
(N.  S.)  167,  13  Ann.  Cas.  893; 
United  States  v.  Northern  Pac. 
Terminal  Co.,  144  Fed.  861;  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  V.  Voel- 


ker,  65  C.  C.  A.  22G,  129  Fed.  522, 

70  L.   R.   A.   264. 

Alabama.  Alabama  Great  South- 
ern R.  Co.  V.  Skotzy,  196  Ala.  25, 

71  So.  335;  Atlantic  Coast  Line  R. 
Co.  V.  Jones,  9  Ala.  App.  499,  63 
So.   693. 

Delaware.  Winkler  v.  Phila- 
delphia &  R.  R.  Co.,  4  Pennew. 
(Del.)   80,  53  Atl.  90. 

Illinois.  Staley  v.  Illinois  Cent. 
R.  Co.,  268  111.  356,  L.  R.  A.  1916A 
450,   109   N.   E.   342. 

New  York.  Whalen  v.  New 
York  Cent.  &  H.  River  R.  Co.,  173 
N.  Y.  App.  Div.  268,  159  N.  Y. 
Supp.  244. 

North  Carolina.  Lloyd  v.  South- 
ern R.  Co.,  166  N.  C.  24,  7  N.  C.  C. 
A.   520,   81   S.   E.   1003. 

Washington.  Snyder  v.  Great 
Northern  R.  Co..  88  Wash.  49,  152 
Pac.  703. 

77.  United  States.  New  York 
Cent.  &  H.  River  R.  Co.  v.  Carr, 
238  U.  S.  260,  59  L.  Ed.  1298,  35 
Sup.  Ct.  780,  9  N.  C.  C.  A.  1; 
Southern  R.  Co.  v.  Snyder,  109  C. 
C.  A.  344,  187  Fed.  492;   Brie  R. 


§  488] 


E.MpLoviis  In  KEi'Aiii  Work. 


843 


mg  interstate  freiglit  temporarily  stoi)})ocl  or  set  aside 
for  repaii's,  are  witliiii  the  terms  of  the  Federal  Aet." 

§  488.  Status  of  Shopmen  Repairing  Empty  Cars 
in  Terminal  Yards  and  Engines  in  Roundhouses.  Jiut 
the  majority  of  railroad  employes  in  the  United  States 
repairing  engines  and  cars,  work  at  terminal  points  upon 
cars  and  engines  when  not  in  actual  use  in  moving  traflic. 
Their  employment  consists  in  repairing  engines  in  round- 
houses hetween  trips  and  cars  on  repair  tracks  and  in 
shoi)s  in  terminal  yards.  Their  labor,  as  a  rule,  is  en- 
tirely distinct  and  separate  from  train  service  proper. 
For  many  years  after  the  enactment  of  the  Federal  Em- 
ployers' Liability  Act,  the  interstate  character  of  sucii 
employes  in  repairing  engines  and  cars  used  indiscrimi- 
nately in  moving  both  interstate  and  intrastate  traffic 
was  not  passed  upon  by  the  national  Supreme  Court. 
Many  state  and  federal  courts  had  held  that  an  employe 
repairing  a  car  or  an  engine,  even  while  not  being  used 
in  transportation  and  set  aside  for  repairs  or  prepara- 
tion for  another  trip,  was  engaged  in  interstate  com- 


Co.  V.  Russell,  106  C.  C.  A.  160, 
183  Fed.  722;  Hohenleitner  v. 
Southern  Pac.  Co.,  177  Fed.  796; 
Norfolk  &  W.  R.  Co.  v.  United 
States,  101  C.  C.  A.  249,  177  Fed. 
623;  United  States  v.  Erie  R.  Co., 
166  Fed.  352;  Chicago,  M.  &  St. 
P.  R.  Co.  V.  United  States,  91  C.  C. 
A.  373,  165  Fed.  423,  20  L.  R.  A. 
(N.  S.)  473;  United  States  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  154  Fed. 
510. 

Iowa.  Bruckshaw  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  173  Iowa  207,  155 
N.  W.  273. 

Michigan.  Fernette  v.  Pere 
.Marquette  R.  Co.,  175  Mich.  653, 
141  N.  W.  1084,  144  N.  W.  834. 

Minnesota.  Bresko  v.  Minne- 
apolis &  St.  L.  R.  Co.,  115  Minn. 
380.   132   N.  W.   337. 

Missouri.  Noel  v.  Quincy,  0.  & 
K.  C.  R.  Co.  (Mo.  App.),  182  S.  W. 
787. 


West  Virginia.  Findley  v.  Coal 
&  Coke  R.  Co.,  76  W.  Va.  747,  87 
S.  E.  198. 

78.  United  States.  Great  North- 
ern R.  Co.  V.  Otos,  239  U.  S.  349, 
60  L.  Ed.  322,  36  Sup.  Ct.  124; 
Delk  V.  St.  Louis  &  S.  F.  R.  Co., 
220  U.  S.  580,  55  L.  Ed.  590,  31 
Sup.  Ct.  617;  St.  Louis  South- 
western R.  Co.  V.  United  States, 
106  C.  C.  A.  136,  183  Fed.  770. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Sharp,  115  Ark.  308,  171 
S.  W.  95. 

Michigan.  Gaines  v.  Deti'oit, 
G.  H.  &  M.  R.  Co.,  181  Mich.  376, 
148  N.  \V.   397. 

Mississippi.  Hooks  v.  New  Or- 
leans &  N.  E.  R.  Co.,  Ill  Miss.  743, 
72    So.    147. 

South  Carolina.  Lorick  v.  Sea- 
board Air  Line  Ry.  101  S.  C.  276, 
Ann.  Cas.  1917D  920,  86  S.  E.  675. 

Vermont.  Lynch's    Adra'r    v. 


su 


Injuries  to  Interstate  Employes. 


[§  488 


merce  if  the  engine  or  car,  being  repaired,  as  the  case 
might  be,  was  in  fact,  when  "on  the  road,"  used  indis- 
criminately in  both  interstate  and  intrastate  commerce.'"' 
Bnt,  under  a  controlling  decision  of  the  national  Supreme 
Court  rendered  in  1917,'"  the  rule  adopted  by  these  courts 
to  determine  interstate  employment  of  car  and  engine 
repairers,  was  too  broad;  for  the  court  in  the  Winters 
case  held  that  an  employe  repairing  an  engine  when  not 
used  in  pulling  trains,  is  not  within  the  purview  of  the 
Federal  statute  unless  the  engine  being  repaired  is  exclu- 


Central    Vermont   R.    Co.,    89    Vt. 
363.  95  Atl.  683. 

Washington.  Bolch  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  90  Wash.  47, 
155   Pac.   422. 

Wisconsin.  Smiegil  v.  Great 
Northern  R.  Co.,  165  Wis.  57,  160 
N.  W.  1057. 

In  Delk  v.  St.  Louis  &  S.  F.  R. 
Co.,  supra,  the  court  said:  "The 
majority  of  the  Circuit  Court  of 
Appeals  (Judges  Severens  and 
Richards)  held  that  the  car,  with 
the  defective  coupler,  was,  at  the 
time  of  the  injury  in  question  and 
within  the  meaning  of  the  act, 
engaged  in  interstate  commerce. 
Judge  Severens  said:  'The  plain- 
tiff in  error  claims  that  it  was  not, 
and  was  laid  by  for  repairs.  But 
we  are  inclined  to  think  other- 
wise. Its  cargo  had  not  yet  reach- 
ed its  destination  and  was  not 
then  ready  for  the  delivery  to 
the  consignee  wherewith  the  com- 
merce would  have  ended.  Its 
stoppage  in  the  yard  was  an  inci- 
dent to  the  transportation.'  " 

79.  United  States.  Law  v. 
Illinois  Cent.  R.  Co.,  126  C.  C.  A. 
27,  208  Fed.  869,  L.  R.  A.  1915C 
17;  Northern  Pac.  Co.  v.  Maerkl, 
117  C.  C.  A.  237,  198  Fed.  1;  Balti- 
more &  O.  R.  Co.  V.  Darr,  124  C.  C. 
A.  565,  204  Fed.  751,  47  L.  R.  A. 
(N.  S.)   4. 


Arkansas.  St.  Louis  &  S.  F.  R. 
Co.  V.  Conarty,  106  Ark.  421,  155 
S.  W.  93. 

California.  Southern  Pac.  Co. 
V.  Pillsbury,  170  Cal.  782,  L.  R.  A. 
1916E   916,   151   Pac.   277. 

Illinois.  Staley  v.  Illinois  Cent. 
R.  Co.,  268  111.  356,  L.  R.  A.  1916A 
450,    109    N.   E.   342. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Branson,  128  Md.  678,  98 
Atl.   225. 

Michigan.  Evans  v.  Detroit,  G. 
H.  &  M.  R.  Co.,  181  Mich.  413,  148 
N.  W.  490. 

Missouri.  Cross  v.  Chicago,  B. 
&  Q.  R.  Co.,  191  Mo.  App.  202,  177 
S.   W.    1127. 

Texas.     Missouri,   K.   &   T.   Ry. 

Co.  of  Texas  v.  Denahy,  Tex. 

Civ.  App.  ,  165  S.  W.  529. 

80.  Minneapolis  &  St.  L.  R.  Co. 
V.  Winters,  242  U.  S.  353,  61  L.  Ed. 
358,  37  Sup.  Ct.  170,  13  N.  C.  C. 
A.  1127,  aff'g  131  Minn.  496,  155  N. 
W.  1103.  This  case  is  reported  on 
first  appeal  to  the  state  supreme 
court  in  126  Minn.  260,  148  N.  W. 
106  and  second  appeal  in  131  Minn. 
181,  154  N.  W.  964.  Accord: 
Parsons  v.  Delaware  &  H.  Co.,  167 
N.  Y.  App.  Div.  536,  153  N.  Y. 
Supp.  179;  Okrzesz  v.  Lehigh  Val- 
ley R.  Co.,  170  N.  Y.  App.  Div. 
15,   155   N.   Y.   Supp.   919. 


§  489]  Employes  In  Repair  Work.  845 

sivt'ly  devoted  and  assi.^ncd  to  the  movement  of  interstate 
traflic.  Tlie  same  princMple  would  necessarily  ai)])iy  to  car 
repairers.  Winters  was  injured  while  repairing  an  en- 
gine in  a  rouiidliouse,  which  had  been  used  in  pulling 
interstate  traflic  on  its  last  trip  and  which,  in  fact,  three 
days  thereafter,  was  used  for  the  same  purpose  after  the 
i'ei)airs  were  made.  The  court,  in  holding  that  lie  was 
not  employed  in  interstate  commerce,  said:  "This  en- 
gine 'had  been  used  in  the  hauling  of  freight  trains  over 
the  defendant's  line  .  .  .  which  freight  trains  haul- 
ed both  intrastate  and  interstate  commerce,  and  it  was 
so  used  after  the  plaintiff's  injury.'  The  last  time  be- 
fore the  injury  on  which  the  engine  was  used  was  on 
October  18,  when  it  pulled  a  freight  train  to  Mar.shall- 
town,  and  it  was  used  again  on  October  21,  after  the 
accident,  to  pull  a  freight  train  out  from  the  same  place. 
That  is  all  that  we  have,  and  is  not  sufficient  to  bring 
the  case  under  the  act.  This  is  not  like  the  matter  of 
repairs  upon  a  road  permanently  devoted  to  commerce 
among  the  states.  An  engine,  as  such,  is  not  permanent- 
ly devoted  to  any  kind  of  traffic,  and  does  not  appear 
that  this  engine  was  destined  especially  to  anything 
more  definite  than  such  business  as  it  might  be  needed 
for.  It  was  not  interrupted  in  an  interstate  haul  to  be 
repaired  and  go  on.  It  simply  had  finished  some  inter- 
state business  and  had  not  yet  begun  upon  any  other. 
Its  next  w^ork,  so  far  as  appears,  might  be  interstate  or 
confined  to  Iowa,  as  it  should  happen.  At  the  moment 
it  was  not  engaged  in  either.  Its  character  as  an  instru- 
ment of  commerce  depended  on  its  employment  at  the 
time,  not  upon  remote  probabilities  or  upon  accidental 
later  events.  "^^ 

§  489.  Subsequent  Cases  Applying  the  Doctrine  of 
the  Winters  Case  to  Car  and  Engine  Repairers.  Follow- 
ing the  decision  of  the  national  Supreme  Court  in   the 

81.    See  also  Baltimore  &  O.  R.  Kindlesparker,  U.  S.  .  62 

Co.  V.  Branson,  242  U.  S.  623,  61  L.  Ed. ,  38  Sup.  Ct.  425  (mem. 

L.  Ed.  534,  37  Sup.  Ct.  244   (mem.  dec),   rev'g   148   C.   C.   A.    17,   234 

dec),   rev'g  128   Md.   678,   98   Atl.  Fed.  1.  decided  April  29,  1918. 
225;    Chicago,  K.  &  S.  Ry.  Co.  v. 


846  Injuries  to  Interstate  Employes.         [§  489 

Winters  case,  supra,  other  courts  have  uniformly  held 
that  employes  repairing  cars  and  engines  at  terminal 
points  wliile  not  being  actually  used  in  interstate  com- 
merce, are  governed  by  state  laws  as  to  injuries  occur- 
ring when  the  cars  and  engines  are  used  indiscriminately 
in  moving  both  kinds  of  commerce  and  without  being 
exclusively  assigned  to  interstate  commerce.  Thus,  in 
Loveless  v.  Louisville  &  N.  R.  Co.,®-  it  appeared  that  a 
car  repairer,  while  repairing  a  car  in  railroad  shops  on 
July  10th  which  had  been  used  from  June  10th  to  July 
2d  on  interstate  trips  and  was,  immediately  after  the 
I'epairs,  used  for  an  interstate  trip,  was  not  engaged  in 
interstate  commerce.  Similarh^,  in  Central  R.  Co.  of 
New  Jersey  v.  Paslick,®^  the  plaintiff  was  injured  while 
working  as  a  helper  in  the  blacksmith  shop  of  a  rail- 
road company,  repairing  a  foreign  car.  The  court,  in 
disposing  of  the  question  of  his  interstate  status,  re- 
marked that  if  the  repair  of  an  engine  in  the  interval 
between  its  interstate  occupations  is  not  sufficiently  close 
to  commerce  to  be  a  part  of  it,  the  repair  of  a  car,  which 
moves  only  when  the  engine  hauls  it,  is  certainly  no 
closer.  A  blacksmith  in  a  repair  and  work  shop  of  a 
carrier,  engaged  in  repairing  cars  and  other  instrumen- 
talities of  interstate  commerce,  was  not  within  the  con- 
trol of  the  federal  act.®* 

82.   Ala.  ,  75  So.  7.  but    which    was    not    exclusively 

An    employe      engaged    at    the  used  in  interstate  commerce,  had 

time   he  was  injured   in   working  no  remedy  under  the  federal  act. 

upon     and     repairing     an     engine  Deffenbaugh    v.    Union   P.   R.    Co., 

which  had  been   used   indiscrimi-      Kas.  ,  171  Pac.  647. 

nately  in  both  interstate  and  in-  An  employe  repairing  an  elec- 
trastate  commerce  prior  thereto  trie  motor  in  a  railroad  yard  was 
and  which  was  thereafter  used  in  not  engaged  in  interstate  corn- 
interstate  and  intrastate  com-  merce.  O'Dell  v.  Southern  Ry. 
merce  as  occasion  might  require,  Co.,  248  Fed.  343. 
had  no  remedy  under  the  Federal  83.  152  C.  C.  A.  547,  239  Fed. 
Act.    Chicago  &  A.  R.  Co.  v.  Allen,  713. 

C.  C.  A.  ■ ,  249  Fed.  280.  84.    Washington,    B.   &  A.   Blec. 

An  employe  repairing  an  empty      R.   Co.  v.   Owens.   Md.  , 

car  in  a  railroad  yard  which  had  101  Atl.  532. 

been  used  in  interstate  commerce  85.    Section  469,  supra. 


^  491]'  KjMpi^vf.h  In  Repair  Work.  847 

§  490.  Differentiating  Factors  Between  Rulings  in 
Winters  and  Pedersen  Cases.  A  conii^arison  of  tlio 
ruling  of  tlio  national  Sui>r<Mii('  Couit  in  tlio  Winters  case, 
supra,  and  the  doctrine  of  that  court  as  announced  in 
tlie  Pedersen  case,"*^  well  illustrates  the  demarcation  be- 
tween interstate  and  intrastate  employment.  The  dis- 
tinction made  in  holdin.i;-  that  Winters  was  not  on«:a.e:r'd 
in  interstate  commerce  when  repairing  an  engine  which 
had  been  pulling  interstate  trains  and  which  was  after- 
wards used  for  the  same  purpose,  and  that  Pedersen, 
while  carrying  a  bolt  to  repair  a  railroad  bridge,  was 
('mi)loyed  in  interstate,  seems,  at  first  blush,  elusive  and 
subtle.  But  there  are,  nevertheless,  sound  differentiating 
factors  between  the  two  cases,  though  both  are  close  to 
the  border  line  of  state  and  federal  jurisdiction.  A 
bridge,  composing  a  part  of  a  line  of  an  interstate  rail- 
road, is  an  instrumentality  which  necessarily  is  perma- 
nently devoted  and  assigned  to  interstate  transporta- 
tion and,  hence,  the  work  of  repairing  such  a  structure 
constitutes  employment  under  federal  control.  However, 
the  engine  while  being  repaired  by  Winters,  was  not 
then  used  in  interstate  commerce  but  was  idle  in  the 
shops,  and,  wliat  is  more  to  the  point,  had  not  been  so 
assigned  to  interstate  transportation  at  the  time  of  the 
injury  so  that  an  employe  in  repairing  it  could  also  be 
said  to  be  engaged  in  that  commerce.  The  engine  was 
used  in  both  kinds  of  commerce  and  not  definitely  as- 
signed or  devoted  to  either,  though  it  so  happened  that 
it  pulled  an  interstate  train  on  its  last  trip  and  was, 
thereafter  used  in  like  employment.  Had  this  engine 
been  detinitely  assigned  to  pulling  interstate  trains, 
Winters  would  have  been  engaged  in  federal  commerce 
within  the  doctrine  of  the  Pedersen  case.  The  engine 
would  have  then  been  used  in  interstate  commerce  as 
much  so  as  the  dining  car  in  Johnson  v.  Southern  Pac. 
Co.«« 

§  491.    Illustrative  Cases  in  wliich  Car  and  Engine 
Repairers  were  not  Employed  in  Interstate  Commerce. 

86.    196  U.  S.  1,  49  L.  Ed.  M2,  25       Sup.  Ct.  158. 


848  Injuries  to  Interstate  Employes.         [§  491 

Employes  working  as  car  and  engine  repairers  for  inter- 
state railroads  were  not  subject  to  the  federal  act  when 
engaged  in  such  work,  under  the  following  circumstan- 
ces: a  car  repairer  in  the  employ  of  a  railroad  company 
was  killed  while  repairing  a  car  that  had  been  trans- 
ported from  New  Jersey  to  Pennsylvania  carrying  inter- 
state commerce.  At  the  time  of  the  accident,  the  car 
had  reached  its  destination  and  was  empty.  So  far 
as  the  evidence  disclosed,  the  car  was  in  Pennsylvania 
awaiting  orders,  and,  not  long  afterwards,  it  was  moved 
to  another  point  in  Pennsylvania,  beyond  which  it  was 
not  traced.  The  administrator  could  not  recover  under 
the  federal  act."  A  carpenter,  it  appeared  in  evidence 
in  another  case,  was  repairing  a  freight  car.  No  facts 
appeared  as  to  what  use  had  been  made  of  the  car 
either  prior  or  subsequent  to  the  accident.  The  plaintiff 
was  denied  a  recovery  under  the  federal  act.^^  In  an- 
other action  it  was  disclosed  that  the  plaintiff,  a  boiler 
maker  working  in  the  shops  of  a  railroad  company,  was 
injured  while  repairing  the  boiler  of  an  engine  used  in 
operating  a  derrick  on  a  fiat  car  while  it  lay  on  the 
ground  near  the  roundhouse.  This  derrick  was  a  part 
of  a  wrecking  train  which  was  subject  to  orders  and  was 
used  regularly  in  the  state  of  Illinois  and  in  other  states, 
when  needed,  depending  upon  the  place  of  disaster.  The 
wrecking  train  consisted  of  a  locomotive,  one  or  more 
flat  cars,  this  derrick  car  and  a  bunk  car.  The  employ- 
es on  the  wrecking  train  slept  in  the  bunk  car  and  re- 
mained there  frequently  for  three  or  four  days  at  a  time. 
The  boiler  maker,  while  repairing  such  an  engine  near 
the  roundhouse,  was  not  engaged  in  interstate  com- 
merce.^" A  roundhouse  employe  working  on  an  engine 
in  a  roundhouse  which  had  just  returned  from  an  intra- 
state journey,  was  not  engaged  in  interstate  commerce 
although  the  engine  was  used  indiscriminately  in  haul- 
ing both  kinds  of  commerce. "^     A  car  repairer  at  the 

87.  Heimbach  v.  Lehigh  VaUey  89.    Ruck  v.   Chicago,   M.  &   St. 
R.    Co.,    197    Fed.    579.                            P.  R.  Co.,  153  Wis.  158,  140  N.  W. 

88.  Louisville    &    N.    R.    Co.    v.       1074. 

Moore,    156    Ky.    708,    161    S.    W.  90.    La  Casse  v.  New  Orleans,  T. 

1129.  &   M.  R.   Co.,   135   La.   129,  64   So. 


'^  493]  Kmployes  In  Repair  Work.  849 

time  of  his  death  was  rej)airin^'  a  box  car  which  had 
been  used  a  long  time  in  both  interstate  and  intrastate 
commerce,  as  occasion  miglit  arise,  and  was,  at  the  time 
of  injury,  being  repaired  in  the  railroad  terminal  yard. 
The  court  held  that  the  decedent  was  engaged  in  inter- 
state commerce.'"  This  decision  was  rendered  before  the 
decisions  of  the  United  States  8ui)reme  Court  in  the 
Winters  case  and  has,  no  dou})t,  in  effect,  been  ovei-rnlcd 
by  it. 

§  492.  Repairing  Cars  and  Engines  Used  Exclu- 
sively in  Interstate  Commerce.  Xotwithslanding  the 
limitation  placed  upon  the  interstate  status  of  car  and 
engine  repairers  in  the  decision  of  the  national  Sui)reme 
Court  in  the  Winters  case,  employes  engaged  in  the  re- 
pair of  cars  used  solely  in  interstate  commerce  are  gov- 
erned l)y  the  federal  act  and  not  by  state  laws.-'^  An 
employe  while  working  in  a  round  house  and  repairing 
an  engine  used  exclusively  in  hauling  interstate  passen- 
ger trains  between  Caliente,  Nev.,  and  Mil  ford,  Utah, 
was  engaged  in  interstate  commerce  within  the  meaning 
of  the  Federal  Act.''^* 

§  493.      Interstate    Status    of    Employes    Painting 
Instrumentalities  of  Commerce  Among  the  States.     Many 

1012,    in    which    the    court    said:  lent  to  being  actuaHy  at  the  time 

"We  do  not  understand  this  evi-  in   use  in  that  commerce,  the  ef- 

dence  to  mean  any  more  than  this  feet    would    be    that    whenever    a 

locomotive,    like   any    other    loco-  railroad   did   not   confine   itself  to 

motive  of  the  defendant  company,  intrastate  commerce,  but  engaged 

or  any  of  its  cars,  might  be  and  also  in  interstate  commerce,  every 

was  sometimes  used  in  interstate  one  of  its  employes   would  at  all 

commerce.     Not  that  it  was  being  limes    be    engaged    in    interstate 

so  used  at  the  time  the  decedent  commerce  when  at  their  work." 

was  attending  to  it.     On  the  con-  91.    Northern     Pac.    R.     Co.    v. 

trary  the  evidence  shows  that  its  Maerkl,  117  C.  C.  A.  237,  198  Fed. 

last   run,   which  was  on   the  pre-  1. 

ceding    day,    had    been    from    an-  92.    Smiegil    v.    Great   Northern 

other   intrastate   point   to    Eunice.  R.    Co.,    165    Wis.    57,    160    N.    W. 

If  the  fact  that  a  locomotive  or  a  1057. 

car  might  be  used  the  next  day,  92a.     Kuchenmeister  v.  Los  An- 

or   whenever   next  needed,   in   in-       geles  &  S.  L.  R.  Co.,  Utah  — , 

terstate    commerce,    were    equiva-  172   Pac.   725. 

1    t'ontrol    c'ariiers    54 


850 


Injuries  to  Interstate  Employes.         [§  493 


instrnmontalities  of  interstate  commerce  must  be  painted 
in  order  to  keep  tliem  in  a  safe  and  proper  condition 
for  the  transportation  of  traffic.  For,  without  paint, 
engines  will  corrode  and  the  woodwork  of  cars  and 
bridges  will  decay.  Employes  of  common  carriers  by 
railroad,  therefore,  engaged  in  painting  instrumentalities 
permanently  devoted  and  assigned,  or  used  in  moving 
ijiterstate  traffic  at  the  time  of  an  injury,  are  under  the 
control  of  the  federal  statute.  For  example,  an  employe, 
while  painting  a  bridge  whicli  was  a  part  of  an  inter- 
state highway  by  railroad  connecting  the  cities  of  Louis- 
ville, Ky.  and  Cincinnati,  Ohio,  was  engaged  in  inter- 
state commerce."^  But  an  emplo^^e  painting  engines 
or  cars  used  iu  interstate  commerce  is  not  under  the 
federal  statute  unless  those  cars  are  exclusively  de- 
voted and  assigned  to  interstate  commerce,  or  unless 
they  are  actually  in  use  in  interstate  commerce  at  the 
time  of  the  injury.  This  rule  is  but  an  exemplification 
of  the  principle  established  by  the  Supreme  Court  in 
determining  the  status  of  employes  repairing  engines 
and  cars  in  the  Winters  case.^*  Thus,  the  Supreme  Court 
of  Maryland  held  that  an  employe  painting  engines  and 
cars  used  on  an  interstate  highway  was  engaged  in 
interstate  commerce. °^  But  on  writ  of  error  to  the  Su- 
preme Court  of  the  United  States,  the  case  was  reversed 
in  a  memorandum  opinion.""    It  did  not  appear  from  the 


93.  Louisville  &  N.  R.  Co.  v. 
Netherton,  175  Ky.  159,  193  S.  W. 
1035.  Said  the  Court:  "It  further 
appears  that  plaintiff,  at  the  time 
of  the  accident,  was  engaged  in 
painting  the  bridge  and  that  this 
work  was  necessary  to  preserve 
the  bridge  and  keep  it  in  proper 
repair.  In  view  of  there  facts,  we 
conclude  that,  at  the  time  of  the 
accident,  the  defendant  was  en- 
gaged, and  the  plaintiff  was  em- 
ployed,   in    interstate    commerce." 

94.  Minneapolis  &  St.  L.  R.  Co. 
V.  Winters,  242  U.  S.  353.  61  L.  Ed. 
358,  37  Sup.  Ct.  170,  13  N.  C.  C.  A. 


1127,   aff'g   131   Minn.    496,   155   N. 
W.   1103. 

95.  Baltimore  &  O.  R.  Co.  v. 
Branson,  128  Md.  678,  98  Atl.  225. 

96.  Baltimore  &  O.  R.  Co.  v. 
Branson,  242  U.  S.  623,  61  L.  Ed. 
534,  37  Sup.  Ct.  244  (mem.  dec), 
128  Md.  67B,  98  Atl.  225.  The  case 
Avas  reversed  upon  the  authority 
of  the  following  cases:  Minneap- 
olis &  St.  L.  R.  Co.  V.  Winters, 
242  U.  S.  353,  61  L.  Ed.  358,  37 
Sup.  Ct.  170,  13  N.  C.  C.  A.  1127, 
aff'g  131  Minn.  496,  155  N.  W. 
1103;  Chicago,  B.  &  Q.  R.  Co.  v. 
Harrington,   241   U.   S.   177,   60   L. 


<^  494]  Employes  Tn  Rhpair  Work.  851 

facts  in  the  Branson  case  that  the  engines  and  cars  were 
exclusively  devoted  and  assigned  to  interstate  com- 
merce while  being  painted  in  the  terniinal  yards  between 
trips.  However,  had  the  i)roof  disclosed  that  the  en- 
gines and  cars  had  been  so  exclusively  devoted  and 
assigned  to  interstate  commerce,  no  doubt  the  court 
would  have  held  llial  the  employe,  while  painting  them, 
was  engaged  in  interstate  commerce.  The  Netherton 
case,  cited  supra,  is  not  in  conflict  with  the  Branson 
case  as  it  there  appeared  that  the  bridge  was  perma- 
nently devoted  to  interstate  traffic  and  actually  in  use 
in  moving  interstate  traffic.  An  employe  of  a  carrier 
engaged  in  painting  an  interlocking  tower  was  not  with- 
in the  federal  act  while  returning  to  the  tower  on  a 
speeder  with  some  paint  to  continue  his  work."  The 
decision  of  the  court  in  the  Jackson  case  was  no  doubt 
correct  for  the  reason  that  the  work  of  painting  an  inter- 
locking tower  constituted  the  same  class  of  work  as  that 
of  employes  repairing  roundliouses,  station  buildings, 
repairing  shops,  etc.^^ 

§  494.  Linemen  Repairing  Telegraph  and  Telephone 
Lines  of  Interstate  Carriers.  Telegraph  and  telephone 
lines  are  maintained  by  railroad  companies  near  to  and 
parallel  with  their  tracks  partly  for  the  purpose  of  en- 
abling train  dispatchers  to  transmit  train  orders  and 
thereby  direct  the  movement  of  interstate  trains.  A 
telephone  or  telegraph  line  is,  therefore,  just  as  essential 
to  the  operation  of  a  railroad  as  cars,  tracks  or  other 
equipment.  Employes  engaged  in  repairing  such  tele- 
graph and  telephone  lines  are  employed  in  interstate 
commerce  within  the  meaning  of  the  act,  for  their  work 

Ed.  941,  36  Sup.  Ct.  517,  11  N.  C.  Co.  v.  Yurkonis,  238  U.  S.  439,  59 

C.  A.  992,  aff'g  (Mo.  App.),  180  S.  L.  Ed.  1397,  35  Sup.  Ct.  902. 

W.  443;  Shanks  v.  Delaware,  L.  &  97.    Jackson  v.  Industrial  Board 

W.  R.  Co.,  239  U.  S.  556,  60  L.  Ed.  of  Illinois,  280  111.  526,  117  N.  E. 

436,  36  Sup.  Ct.  188,  aff'g  214  N.  705. 

Y.  413,  Ann.  Cas.   191(JE  467,   108  98.    Section  483,  supra. 

N.  E.  644;   Delaware,  L.  &  W.  R. 


852  Injuries  to  Interstate  Employes.         [^  494 

is  directly  and  immediately  connected  with   tlie   work 
of  interstate  commerce.''^ 

99.      Coal    &    Coke    R.    Co.    v.  nia,    174    Cal.    19,    161    Pac.    1143; 

Deal,    145   C.   C.   A.   490,   231   Fed.  Collins  v.  Michigan  Cent.  R.  Co., 

604:    Southern   Pac.   Co.  v.   Indus-  193  Mich.  303,  159  N.  W.  535. 
trial  Ace.  Commission  of  Califor- 


CHAPTER  XXV 

Interstate  Status  of  Train  and  Switching  Crews. 

Sec.  495.  Trainmen  on  Interstate  Trains  are  Employed  in  Interstate 
Commerce. 

Sec.  496.     When  Trainmen  are  not  Engaged  in  Interstate  Commerce. 

Sec.  497.     Employes   Preparing   Interstate   Trains   for   Movement. 

Sec.  498.  Beginning  and  Termination  of  Federal  Control  over  Crews 
on    Trains   Carrying    Interstate   Commerce. 

Sec.  499.  Interstate  Employment  of  Train  Crews  on  Return  Trip  not 
Shown  by  Proof  that  Train  on  Outgoing  Trip  Carried 
Interstate  Freight. 

Sec.  500.  Train  and  Switching  Crews  "Making  Up"  and  "Breaking 
Up"  Interstate  Trains  in  Railroad  Yards. 

Sec.  501.  Switching  Cars  Containing  Intrastate  Shipments  into  or  out 
of    Interstate    Trains — Early   Conflicting   Rulings. 

Sec.  502.  Status  of  Such  Employes  Finally  Held  to  be  Under  Fed- 
eral Control. 

Sec.  503.  Test  in  Determining  when  Switching  Crews  are  Employed 
in  Interstate  Commerce. 

Sec.  504.  Doctrine  of  Behrens  Case  as  to  Interstate  Status  of  Switch- 
ing Crews  Reaffirmed  and  Applied. 

Sec.  505.  Exceptions  to  Rule  that  Switching  Crews  Moving  Intra- 
state Cars  Exclusively  are  Governed  by  State  Law. 

Sec.  506.  Switching  Movements  of  Empty  Cars  in  Railroad  Yards  to 
be  Loaded  with  Interstate  Freight. 

Sec.  507.  Weighing  of  Cars  Containing  Interstate  Freight  after  Un- 
loading to  Determine  Weight  of  Contents. 

Sec.  508.  Switching  Movement  of  Cars  After  Termination  of  Inter- 
state Journey  or  After  Receipt  by  Consignee. 

Sec.  509.     Switching  Cars  Loaded  with  Interstate  Freight  for  Repairs. 

Sec.  510.  Local  Movement  of  Cars  in  Yard  Between  Completion  of 
one   Interstate  Trip  and  Commencement  of  Another. 

Sec.  511.  Exceptions  to  Rule  that  Delivery  of  Car  at  Destination  Ends 
Its  Interstate  Status. 

Sec.  512.  Switching  Movement  of  Car  of  Lumber  to  be  Used  in  Re- 
pairing and  Building  Cars  Used  in  Interstate  Commerce. 

Sec.  513.  Employes  Making  up  Train  of  Another  Company  for  an 
Interstate  Run  Over  the  Latter's  Track. 

Sec.  514.  Illustrative  Cases  Showing  Employment  of  Switching  Crews 
in   Interstate  Commerce. 

§  495.  Trainmen  on  Interstate  Trains  are  Employ- 
ed in  Interstate  Commerce.  Engineers,  firemen,  con- 
ductors, brakemen,  flagmen,  baggagemen,  and  other  em- 

(853) 


S&J: 


Injuries  to  Interstate  Employes.         [^  495 


ployes  working  on  interstate   trains,  are   employed  in 
interstate  commerce  within  the  meaning  of  the  act.'     A 


1.    United  States.    Chesapeake  & 
O.  R.  Co.  V.  Proffitt,  241  U.  S.  462, 
GO  L.   Ed.   1102,  36   Sup.  Ct.  620; 
Southern   R.   Co.  v.   Gray,   241   U. 
S.  333,  60  L.  Ed.  1030,  36  Sup.  Ct. 
558;    Baugham  v.  New  York,  P.  & 
N.  R.  Co.,  241  U.  S.    237,  60  L.  Ed. 
977,  36  Sup.  Ct.  592,  13  N.  C.  C.  A. 
138;  Kansas  City  Southern  R.  Co. 
V.  Jones,  241  U.  S.  181,  60  L.  Ed. 
943,  36  Sup.  Ct.  513;  Illinois  Cent. 
R.    Co.    V.    Skaggs,    240    U.    S.    66, 
60   L.    Ed.    528,    36    Sup.    Ct.    249; 
Seaboard  Air  Line  Ry.  v.  Horton, 
239   U.    S.   595,    60   L.   Ed.   458,   3G 
Sup.   Ct.   180;    Kanawha   &   M.   R. 
Co.  V.  Kerse,  239  U.  S.  576,  60  L. 
Ed.  448,  36  Sup.  Ct.  174;  Chicago, 
R.   I.  &  P.  R.  Co.  V.  Wright,  239 
U.  S.  548,  60  L.  Ed.  431,  36   Sup. 
Ct.  185;    Southern  R.  Co.  v.  Lloyd, 
239   U.   S.   496,   60   L.    Ed.   402,   36 
Sup.  Ct.  210;     Great  Northern  R. 
Co.  V.  Otos,  239  U.  S.  349,  60  L.  Ed. 
322,  36  Sup.  Ct.  124;  Central  Ver- 
mont R.  Co.  V.  White,  238  U.   S. 
507,  59  L.  Ed.  1433,  35  Sup.  Ct.  865, 
9  N.  C.  C.  A.  265,  Ann.  Cas.  1916B 
252;    Norfolk  Southern  R.  Co.  v. 
Ferebee,  238  U.  S.  269,  59  L.  Ed. 
1303,  35   Sup.  Ct.  781;    New  York 
Cent.  &  H.  River  R.  Co.  v.  Carr, 
238  U.  S.  260,  59  L.  Ed.  1298,  35 
Sup.    Ct.    780,    9    N.    C.    C.    A.    1; 
Southern   R.  Co.  v.   Gadd,   233   U. 
S.  572,  58  L.  Ed.  1099,  34  Sup.  Ct. 
696;     North    Carolina    R.    Co.    v. 
Zachary,  232  U.  S.  248,  58  L.  Ed. 
591,   34    Sup.   Ct.   305,   9   N.   C.   C. 
A.     109,     Ann.     Cas.     1914C     159; 
Southern     R.     Co.      v.     McGuin, 
153    C.    C.    A.    447,    240    Fed.    649; 
Waters  v.  Guile,  148  C.  C.  A.  298, 
234  Fed.  532;  Peek  v.  Boston  &  M. 
R.   R.,   223   Fed.   448;    Shanley   v. 
Philadelphia  &  R.  R.  Co.,  221  Fed. 


1012;  Bay  v.  Merrill  &  Ring  Lum- 
ber Co.,  211  Fed.  717. 

Arkansas.  St.  Louis,  L  M.  &  S. 
R.  Co.  V.  Stewart,  124  Ark.  437, 
187  S.  W.  920;  Kansas  City  South- 
ern R.  Co.  V.  Livesay,  118  Ark. 
304,  177  S.  W.  875. 

Connecticut.  Hubert  v.  New 
York,  N.  H.  &  H.  R.  Co.,  90  Conn. 
261,  96  Atl.  967. 

Florida.    Seaboard  Air  Line  Ry. 

Co.  V.  Hess,  Fla.  ,  74  So. 

500;     Louisville    &    N.    R.    Co.    v. 

Rhoda,  Fla.  — ,  74  So.  19. 

Georgia.  Seaboard  Air  Line  Ry. 
'Co.  V.  McMichael,  143  Ga.  689,  85 
S.  E.  891. 

Illinois.  Walton  v.  Pryor,  276 
111.  563,  115  N.  E.  2. 

Indiana.    Cincinnati,  H.  &  D.  R. 

Co.  V.  Gross, Ind. ,  114  N. 

E.    962;    Chicago   &   E.   R.    Co.    v. 

Feightner,    Ind.    App.    , 

114  N.  B.  659. 

Iowa.  Kenyon  v.  Illinois  Cent. 
R.  Co.,  173  Iowa  484,  155  N.  W. 
810;  Bruckshaw  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  173  Iowa  207,  155  N. 
W.  273. 

Kansas.  Bumstead  v.  Missouri 
Pac.  R.  Co.,  99  Kan.  589,  L.  R.  A. 
1917E  734,  162  Pac.  347;  Saar  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  97 
Kan.  441,  155  Pac.  954;  Smith  v. 
St.  Louis  &  S.  P.  R.  Co.,  95  Kan. 
451,  148  Pac.  759;  Thornbro  v. 
Kansas  City,  M.  &  0.  R.  Co.,  91 
Kan.  684,  Ann.  Cas.  1915D  314, 
139  Pac.  410. 

Kentucky.  Davis'  Adm'r  y. 
Cincinnati,  N.  0.  &  T.  P.  R.  Co., 
172  Ky.  55,  188  S.  W.  1061;  Nor- 
folk &  W.  R.  Co.  V.  Short's  Adm'r, 
171  Ky.  647,  188  S.  W.  786;  Chesa- 
peake &  0.  R.  Co.  V.  Shaw,  168 
Ky.  537,  182  S.  W.  653;  Cincinnati, 


§  495] 


Train  and  Switching  Crp:ws. 


855 


brakeinaii    kill(Ml    while   helping   to   move    an    interstate 


N.  O.  &  T.  p.  R.  Co.  V.  Tucker, 
1(18  Ky.  144,  181  S.  W.  940;  Chesa- 
peake &  O.  R.  Co.  V.  Kornhoff,  167 
Ky.  353,  180  S.  W.  523;  LouisvilI(! 
&  N.  R.  Co.  V.  Holloway's  Adm'r, 
1(53  Ky.  125,  173  S.  W.  343;  Nash- 
ville, C.  &  St.  L.  R.  Co.  V.  Banks, 
156  Ky.  609,  161  S.  W.  554. 

Michigan.  Holmberg  v.  Lake 
Shore  &  M.  S.  R.  Co..  188  Mich. 
605,  155  N.  W.  504;  Fcrnette  v. 
Pere  Marquette  R.  Co.,  175  Mich. 
653,  144  N.  W.  834;  Fernette  v. 
Pere  Marquette  R.  Co.,  175  Mich. 
65."^,  141  N.  W.  1084. 

Minnesota.  Davis  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  134  Minn.  49,  158 
N.  W.  911:  Burke  v.  Chicago  & 
N.  W.  R.  Co.,  131  Minn.  209,  154 
N.  W.  960;  Peery  v.  Illinois  Cent. 
R.  Co..  123  Minn.  264,  143  N.  W. 
724. 

Mississippi.  Yazoo  &  M.  V.  R. 
Co.  V.  Mullins,  114  Miss.  343,  76  So. 
147. 

Missouri.  Noel  v.  Quincy.  Q.  & 
K.  C.  R.  Co.,  (Mo.  App.).  182  S. 
W.  787;  Delano  v.  Roberts,  (Mo. 
App.).  182  S.  W.  771:  Hearst  v. 
St.  Louis,  I.  M.  &  S.  R.  Co..  188 
Mo.  App.  36,  173  S.  W.  86:  Thomp- 
son V.  Wabash  R.  Co.,  262  Mo.  46^, 
171  S.  W.  364;  Moliter  v.  Wabash 
R.  Co..  180  Mo.  App.  84,  168  S.  W. 
250:  Rich  v.  St.  Louis  &  S.  F.  R. 
Co..  166  Mo.  App.  379,  148  S.  W. 
1011. 

Nebraska.  Henderson  v.  Union 
Pac.  R.  Co.,  100  Neb.  734,  161  N. 
W.  267;  Phillips  v.  Union  Pac.  R. 
Co..  100  Neb.  157,  158  N.  W.  966. 

New    Hampshire.       Castonia     v. 

Maine  Cent.  R.  R., N.  H. , 

100  Atl.  601:    Topore  v.  Boston  & 

M.    R.    R..    N.    H.   ,    100 

Atl.   153. 


New  Jersey.  Wilczynski  v.  Penn- 
sylvania R.  Co.,  N.  J.  L. , 

100   Atl.   226. 

New  York.  Daley  v.  Boston  & 
-M.  R.  R.;  166  N.  Y.  Supp.  840; 
McAuliffe  v.  New  York  Cent.  &  H. 
River  R.  Co.,  172  N.  Y.  App.  Div. 
597,  158  N.  Y.  Supp.  922;  Swart- 
wood  V.  Lehigh  Valley  R.  Co.,  169 
N.  Y.  App.  Div.  759,  155  N.  Y. 
Supp.  778:  Hober  v.  New  York  & 
P.  R.  Co.,  220  N.  Y.  613,  115  N.  E. 
1041;  White  v.  Lehigh  Valley  R. 
Co.,  220  N.  Y.  131,  115   N.  E.   439. 

North  Carolina.  Sears  v.  Atlan- 
tic Coast  Line  R.  Co..  169  N.  C. 
446,  86  S.  E.  176. 

North  Dakota.  Hein  v.  Great 
Northern  R.  R.,  34  N.  D.  440,  159 
N.  W.  14. 

Oklahoma.     Chicago,  R.   I.  &  P. 

Ry.  Co.  V.  Hughes, Okla. , 

166  Pac.  411. 

Pennsylvania.  Moyer  v.  Penn- 
sylvania R.  Co.,  247  Pa.  210,  93 
Atl.   282. 

Texas.     Ceer  v.  St.  Louis.  S.  F. 

&  T.  Ry.  Co.,  Tex.  ,  194 

S.  W.  939;  Chicago,  R.  I.  &  G.  Ry. 

Co.    v.    Do    Bord,   Tex.   —■ — , 

192  S.  W.  767:  Gulf.  C.  &  S.  F.  Ry. 

Co.  V.  Cooper,  Tex.  Civ.  App. 

.   191   S.  W.   579;    Texas  &  P. 

Ry.   Co.  V.  Rasmussen,  Tex. 

Civ.  App.  .  181  S.  W.  212;   Ft. 

Worth  &  D.  C.  Ry.  Co.  v.  Stalcup, 

Tex.   Civ.    App.  .   167   S. 

W.     279;     Southern     Pac.     Co.    v. 

Vaughn,  Tex.  Civ.  App.  , 

165  S.  W.   885. 

Utah.  Kipros  v.  Uintah  R.  Co., 
4.T  Utah  389.  146  Pac.  292. 

Vermont.  Lynch's  Adm'r  v. 
Central  Vermont  R.  Co..  89  Vt. 
363.  95  Atl.  683. 

Washington.  Donaldson  v.  Great 


856  Injuries  to  Interstate  Employes.         [§  495 

train,  was  lield  to  be  engaged  in  interstate  commerce.' 
Employes  of  a  common  carrier  by  railroad  on  a  train 
transporting  freight  from  one  station  on  a  railway  line 
to  another  station  in  the  same  state,  where  the  freight 
was  to  be  transported  by  other  trains  to  another  state, 
were  engaged  in  interstate  commerce  within  the  mean- 
ing of  the  federal  act.^  A  brakeman  employed  on  a 
train  rmming  between  two  terminals  in  the  same  state 
which  contained  cars  destined  for  points  in  other  states, 
and  injured  while  nncoiipling  two  cars,  was  engaged  in 
interstate  commerce/  A  fireman  on  an  engine  of  a  pas- 
senger train  running  from  Chicago  to  Milwaukee  and 
injured  in  Illinois,  was  employed  in  interstate  commerce.'* 
An  engineer  on  a  freight  train  running  from  a  point  in 
Missouri  to  another  place  in  Arkansas  and  killed  while 
enroute,  was  held  to  have  been  employed  in  interstate 
commerce.**  Although  a  freight  train  was  only  operated 
between  two  terminals  in  the  same  state,  yet  since  it 
transported  freight  from  one  state  to  another  and  to  a 
foreign  country,  the  emploj^es  on  the  train  were  engaged 
in  interstate  commerce.^  A  brakeman  on  a  passenger 
train  running  from  a  point  in  Kentucky  to  another  point 
in  Ohio,  was  held  to  be  engaged  in  interstate  commerce.** 
An  employe  working  in  the  capacity  of  a  brakeman  and 
freight  shifter  on  a  freight  train  running  from  Harlem, 
N.  Y.,  to  Stamford,  Conn.,  and  injured  while  engaged  in 

Northern  R.  Co.,  89  Wash.  161,  154  v.  Banks,  156  Ky.  609,  161   S.  W. 

Pac.  133.  554. 

West  Virginia.     Findley  v.  Coal  5.    Rowlands  v.  Chicago  &  N.  W. 

&  Coke  R.  Co.,  76  W.  Va.  747,  87  R.    Co.,    149    Wis.    51,    Ann.    Cas 

S.  E.   198.  1916E  714,  135  N.  W.  156. 

Wisconsin.     Reul    v.    Wisconsin  6.    St.  Louis,  I.  M.  &  S.  R.  Co. 

Northwestern   Ry.    Co.,  Wis  v.  Conley,  110  C.  C.  A.  97,  187  Fed. 

,  163  N.  W.  189.  ^^^• 


2.  Hearst  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.,  188  Mo.  App.  36,  173  S. 
W.  86;  Vaughan  v.  St.  Louis  &  S. 


7.    Northern  Pac.  R.  Co.  v.  State 
ex  rel.  Atkinson  222  U.  S.  370,  56 
L.  Ed.  237,  32  Sup.  Ct.  160,  rev'g 
53  Wash.   673,   17  Ann.  Cas.   1013, 
F.   R.   Co.,   177   Mo.   App.   155,   164       ^^2  pac.  876. 

S-  W.  144.  g     Cincinnati,  N.  O.  &  T.  P.  R. 

3.  United  States  v.  Chicago,  M.  qq    y    Qoode,  155  Ky.  153,  159  S. 
&  P.  S.  Ry.  Co.,  197  Fed.  624.  w.  695;   s.  c,  153  Ky.  247,  154  S. 

4.  Nashville,  C.  &  St.  L.  R.  Co.  W.  941. 


§  495]  Tiuix  AND  Switching  Crews.  857 

tlie  transfer  of  frei^lit  from  one  car  to  another  Ti])on  the 
train,  was  governed  l)y  the  federal  act  as  to  his  riglit  to 
recover  judginent  against  the  carrier."  A  crew  in  charge 
of  a  i)assenger  train  upon  tlie  conclusion  of  an  interstate 
run  and  after  all  the  passengers  had  been  discliarged  at 
a  station,  following  a  daily  custom,  removed  the  train 
from  the  station  to  the  railroad  yards  where  it  would 
remain  over  night.  While  assisting  in  placing  the  train 
on  a  side  track  in  the  yards,  the  baggageman  was  in- 
jured. He  was  still  employed  in  interstate  commerce  as 
it  was  a  part  of  the  interstate  trip  to  place  the  train  in 
the  yards  preparatory  to  another  interstate  trip  on  the 
next  morning.^" 

§  496.  When  Trainmen  are  not  Engaged  in  Inter- 
state Commerce.  If,  at  the  time  of  the  accident,  the 
injured  employe  was  engaged  in  intrastate  commerce, 
his  remedy  is  govenied  exclusively  by  the  laws  of  the 
state  where  the  casualty  occurred.  Trainmen,  such  as 
engineers,  firemen,  flagmen,  baggagemen,  brakemen,  port- 
ers and  conductors,  are  not  employed  in  interstate  com- 
merce when  they  are  assisting  exclusively  in  the  move- 
ment of  intrastate  traffic.'^    For  instance,  when  tliey  are 

9.  Hubert  v.  New  York,  N.  H.  Arkansas.  St.  Louis,  I.  M.  &  S. 
&  H.  R.  Co.,  90  Conn.  261.  96  R.  Co.  v.  Coke,  118  Ark.  49,  175  S. 
Atl.  967.                                                          W.  1177. 

10.  Chesapeake  &  O.  R.  Co.  v.  Indiana.  Chicago  &  E.  R.  Co.  v. 
Shaw,  168  Ky.  537,  182  S.  W.  653.       Feightner,    Ind.    App.    , 

11.  United  States.  Illinois  Cent.       114  N.  E.  659. 

R.    Co.    V.    Peery,    242    U.    S.    292,  Kentucky.      Louisville    &    N.    R. 

61    L.    Ed.    309,    37    Sup.    Ct.    122;  Co.    v.    Strange's   Adm'x.    156    Ky. 

Osborne  v.  Gray,  241  U.  S.  16.  60  439,  161  S.  W.  239. 

L.  Ed.  865,  36  Sup.  Ct.  486;   Pryor  Missouri.     Kiser  v.  Metropolitan 

V.  Bishop,  148  C.  C.  A.  25,  234  Fed.  St.  Ry.  Co.,  188  Mo.  App.  169.  175 

9;    Boyle  v.   Pennsylvania  R.  Co..  S.   W.   98;    Miller  v.   Kansas  City 

142    C.    C.    A.    558.    228    Fed.    266;  Western  R.  Co.,  180  Mo.  App.  371. 

Shanley   v.    Philadelphia   &   R.   R.  168  S.  W.  336. 

Co..   221   Fed.   1012:    Pennsylvania  Montana.     McBain   v.   Northern 

R.  Co.  V.  Knox.   134  C.  C.  A.  426,  Pac.  R.  Co..  52  Mont.  578.  160  Pac. 

218  Fed.  748.  654. 

Alabama.     Western  Ry.  of  Ala-  New  Hampshire.    Cantin  v.  Glen 

bama  v.  Mays,  197  Ala.  367,  72  So.       Junct.    Transfer    Co..   N.    H. 

641.  ,   96   Atl.   303. 


858  Injuries  to  Interstate  Employes.         [§  496 

employed  on  a  train  containing  onlif  traffic  billed  be- 
tween'two  points  in  one  state,  the  line  between  the  two 
points  being  wholly  within  the  state,  they  are  engaged 
in  intrastate  commerce.     As  a  matter  of  fact,  however, 
in  the  practical  operation  of  railroads,  trains  running 
between  two  terminals,  containing  only  intrastate  com- 
merce, that  is,  traffic  originating  in  and  being  destined 
to  a  point  in  the  same  state,  are  seldom  operated,  as  the 
examination  of  conductors'  wheel  reports  will  disclose, 
and,   as  a  rule,  every  train  carries  interstate   freight. 
If  a  train  has  a  single  shipment  of  interstate  freight, 
then  all  the  employes  working  on  that  train  are  engaged 
in    interstate    commerce.      Notwithstanding,    trains,    as 
a  rule,  carry  interstate  commerce,  cases  have  been  pass- 
ed upon,  in  which  the  courts  have  held,  and  properly  so, 
that  the  employe's  remedy  was  governed  exclusively  by 
the  state  law,  because  of  the  fact  that  the  train  on  which 
he  was  working  contained  only  intrastate   shipments.'^ 
For  instance,  a  switching  crew  for  a  railroad  company 
worked  sometimes  during  the  day  in  transporting  inter- 
state shipments  and  at  other  times  in  hauling  intrastate 
freight.     The  plaintiff  was  a  member  of  this  switching 
crew  working  on  a  short  line  terminating  at  a  smelt- 
New  York.    Hoag  v.  Ulster  &  D.       Valley  Elec.  R.  Co.,  78  W.  Va.  144, 
R.   Co.,    177   N.   Y.   App.   Div.   433,       88  S.  E.  659. 

164  N.  Y.  Supp.  529;   Fairchild  v.  12.    Illinois      Cent.     R.     Co.     v. 

Pennsylvania  R.  Co.,  170  N.  Y.  Eehrens,  233  U.  S.  473,  58  L.  Ed. 
App.  Div.  135,  155  N.  Y.  Supp.  751;  1051,  34  Sup.  Ct.  646.  10  N.  C.  C. 
Norton  v.  Erie  R.  Co.,  163  N.  Y.  A.  153,  Ann.  Cas.  1914C  163; 
App.  Div.  466,  148  N.  Y.  Supp.  769.  Southern  R.  Co.  v.  Murphy,  9 
North  Dakota.  Hein  v.  Great  Ga.  App.  190,  70  S.  E.  972;  Louis- 
Northern  R.  R.,  34  N.  D.  440,  159  ville  &  N.  R.  Co.  v.  Strange's 
N    W.   14.  Adm'x,  156  Ky.  439,  161  S.  W.  239; 

Oklahoma.    Atchison,  T.  &  S.  F.      Wright  v.  Chicago,  R.  I.  &  P.  R. 
R.    Co.    v.    Pitts,    44    Okla.    604,    9       Co.,  94  Neb.  317,  143  N.  W.  220. 
N.  C.  C.  A.   545,  145   Pac.  1148.  A     freight    conductor    was     in- 

Texas.     Missouri,   K.   &   T.   Ry.       jured  while  operating  a  train  be- 

Co.   of  Texas   v.   Pace,  Tex.       tween    two    points    in    thje    same 

Civ.    App.   ,   184    S.   W.    1051;       state,    which    consisted    solely    of 

Chicago,    R.    l'&    G.    Ry.    Co.    v.      an  engine  and   the  waycar.     The 

Cosio,   Tex.    Civ.   App.   ,       train  crew  of  which  this  conduc- 

182  S.  W.  83.  tor   was   a   member,   was   not   re- 

West   Virginia.     Watts   v.    Ohio       turning  from  a  trip  after  hauling 


§  496]  Train  and  Switching  Crkws.  850 

ine:  works.  Tliis  cv9w  made  tliree  or  four  Irips  a  day  out 
to  the  main  lino  liaiiliii^  cars  eoTitaiiiin^  both  intrastato 
and  interstate  shipments.  At  othor  times  while  on  duty 
they  were  en^a^ed  in  switching  the  coal  and  eoke  cars 
from  what  were  known  as  the  "coke  tracks"  to  other 
points  nearby,  all  in  tlie  same  state.  The  plaintiff  was 
injured  while  em]">loyed  in  assistinu;  in  the  transportation 
of  the  intrastate  shipments,  and  the  court  held  that  he 
was  engaged  solely  in  intrastate  commerce  at  the  time 
and  that  liis  remedy  was  governed  exclusively  by  the 
laws  of  the  state  where  the  casualty  occurred. ^^  A 
switchman,  assisting  in  the  movement  of  empty  pas- 
senger cars  after  reaching  a  terminal,  which  had  been 
used  exclusively  in  transporting  intrastate  passengers, 
was  held  to  have  been,  while  so  engaged,  not  employed 
in  interstate  commerce."  A  car  inspector,  preparing  to 
inspect  a  passenger  train,  running  between  two  ]ioints 
in  the  same  state,  and  carrying  no  interstate  passengers, 
was  not  engaged  in  interstate  commerce. ^^  A  fireman  on 
a  pusher  engine  belonging  to  a  carrier  whose  lines  were 
confined  within  one  state,  assisted  in  moving  a  train 
containing  coal  and  through  freight  from  a  terminus 
to  an  intermediate  station  on  the  line.  Upon  the  con- 
clusion of  this  service,  the  engine  returned  part  way 
and  assisted  in  moving  another  train  carrying  milk  up 
a  grade  to  the  same  station.  The  engine  was  then  order- 
ed to  return  and  assist  in  moving  an  extra  passenger 
train,  and,  while  so  returning,  the  fireman  was  killed  in 
a  collision  between  his  engine  and  the  passenger  train. 

empty  or  loaded  cars  between  the  constitutes    interstate    commerce, 

states,  but  was  returning  without  but  it  has  been  in  principle  decid- 

transporting   any   commerce   from  ed  that  it  does  not."   RlcAuliffe    v. 

one  state  to  another.    Under  these  New  York  Cent.  &  H.  River  R.  Co., 

facts,  the  court  said:    "They  were  164  N.  Y.  App.  Div.  84G,  150  N.  Y. 

carrying    instrumentalities    which  Supp.  512. 

had  been  and  probably  would  be  13.    Southern  R.  Co.  v.  Murphy, 

used   in   the  future   for   interstate  9  Ga.  App.  190,  70  S.  E.  972. 

and  intrastate  transportation  com-  14.    Patry    v.    Chicago    &    W.    I. 

bined,  or  only  for  intrastate  pur-  R.  Co.,  265  111.  310,  106  N.  E.  843, 

poses,  or  perchance  for  interstate  rev'g  185  111.  App.  361. 

commerce  only.    I  cannot  find  that  15.     Boyle    v.    Pennsylvania    R. 

it  has  been  decided  that  such  act  Co.,  142  C.  C.  A.  558,  228  Fed.  266. 


860 


Injuries  to  Interstate  Employes.         [^  496 


The  court  held  that  his  employment  in  connection  with 
the  two  freight  trains — conceding  that  they  contained 
interstate  shipments — had  terminated  at  the  time  of  his 
death  so  that  a  recoA'ery  under  the  federal  act  on  that 
gromid  eonld  not  be  sustained/'' 

§  497.  Employes  Preparing  Interstate  Trains  for 
Movement.  Eniphiyes  of  a  railroad  company  while 
doing  any  act  within  the  scope  of  their  employment  nec- 
essary or  expedient  to  prepare  interstate  trains  for  move- 
ment, and  directly  connected  tlierewith,  are  employed 
in  interstate  commerce  within  the  terms  of  the  federal 
act.''     Thus,  an  engineer  in  charge  of  an  engine  used 


16.  Hoag  V.  Ulster  &  D.  R.  Co., 
177  N.  Y.  App.  Div.  433,  164  N.  Y. 
Supp.  529. 

17.  United  States.  Chicago  & 
N.  W.  R.  Co.  V.  Bower,  241  U.  S. 
470,  60  L.  Ed.  1107,  36  Sup.  Ct. 
624;  Southern  R.  Co.  v.  Lloyd, 
239  U.  S.  496,  60  L.  Ed.  402,  36 
Sup.  Ct.  210;  New  York  Cent.  & 
H.  River  R.  Co.  v.  Carr,  238  U. 
S.  260,  59  L.  Ed.  1298,  35  Sup. 
Ct.  780,  9  N.  C.  C.  A.  1;  Seaboard 
Air   Line   Ry.   v.   Padgett,    236   U. 

S.  668,   59  L.  Ed.  777,  35   Sup.  Ct. 

481;      Grand    Trunk    Western    R. 

Co.  V.  Lindsay,  233  U.  S.  42,  58  L. 

Ed.  838,  34  Sup.  Ct.  581,  Ann.  Cas. 

1914C  168;    Norfolk  &  W.  R.   Co. 

V.   Earnest,    229    U.    S.    114,    57   L. 

Ed.    1096,    33    Sup.    Ct.    654,    Ann. 

Cas.  1914C  172;    Clark  v.  Erie  R. 

Co.,  230  Fed.  478;    Hogan  v.  New 

York    Cent.    &   H.    River    R.    Co, 

139  C.  C.  A.  328,  223  Fed.  890.  12 

N.  C.  C.  A.  1050. 

Alabama.  Southern  Ry.  Co.  v. 

Fisher,  Ala. ,  74  So.  580; 

Alabama  Great  Southern  R.  Co.  v. 
Skotzy,  196  Ala.  25,  71  So.  335; 
Southern  R.  Co.  v.  Peters,  194 
Ala.  94,  69  So.  611. 

Arkansas.  Kansas  City  South- 
ern R.  Co.  v.  Miller,  117  Ark.  396, 


175  S.  W.  1164;  St.  Louis  South- 
western R.  Co.  v.  Anderson,  117 
Ark.  41,  173   S.  W.  834. 

Illinois.  Wagner  v.  Chicago  &  A. 
R.  Co.,  265  111.  245,  Ann.  Cas. 
1916A   778,  106  N.  E.  809. 

Indiana.  Vandalia  R.  Co.  v. 
Holland,  183  Ind.  438,  108  N.  E. 
580. 

Iowa.  Bruckshaw  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  173  Iowa  207, 
155  N.  W.  273;  Byram  v.  Illinois 
Cent.  R.  Co.,  172  Iowa  631,  154  N. 
W.  1006;  Armbruster  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  166  Iowa  155, 
147  N.  W.   337. 

Kentucky.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V.  Goode,  153  Ky. 
247,  154  S.  W.  941. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Whitacre,  124  Md.  411,  92 
Atl.  1060. 

Minnesota.  Davis  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  134  Minn.  49,  158 
N.  W.  911;  Crandall  v.  Chicago 
Great  Western  R.  Co.,  127  Minn. 
498,  150  N.  W.  165. 

Missouri.  Trowbridge  v.  Kansas 
City  &  W.  B.  Ry.,  192  Mo.  App. 
52,  179  S.  W.  777;  Rich  v.  St. 
Louis  &  S.  F.  R.  Co.,  166  Mo. 
App.  379,  148  S.  W.  1011. 


§497] 


Train  and  Switching  Crews. 


861 


exclusively  on  a  division  of  a  railroad  runninc^  between 
two  })oints  in  diJTerent  states,  was  employed  in  interstate 
commerce  while  lie  was  o))erating  the  engine  on  a  side 
track  in  a  railroad  yard  to  determine  whether  it  was 
in  serviceable  condition  to  jjuH  an  interstate  train. ^*  A 
fireman  on  a  locomotive  engine,  inspecting,  oiling,  firing 
and  preparing  his  engine  for  an  interstate  trip,  was, 
while  so  engaged,  within  the  protection  of  the  national 
statute  although  he  had  not  at  the  time  of  his  injury  and 
deathj  ])articipated  in  assisting  in  the  movement  of  any 
interstate  freight  and  the  engine  had  not  been  coupled 
to  the  cars  of  the  train.^"  A  switchman  who  stepped 
upon  a  defective  footboard  of  a  switch  engine  while 
engaged  in  making  u])  an  interstate  train,  was  held  to 


New     Hampshire.        Topore      v. 

Boston    &    M.    R.    R.,   N.    H. 

,  100  Atl.  153. 

New  Jersey.  Tonsellito  v.  New 
York  Cent.  &  H.  River  R.  Co.,  87 
N.   J.   L.   651,   94   Atl.  804. 

North  Carolina.  Sears  v.  Atlan- 
tic Coast  Line  R.  Co.,  169  N.  C. 
446,  86  S.  E.  176;  Lloyd  v.  South- 
ern R.  Co.,  166  N.  C.  24,  7  N.  C. 
C.  A.  520,  81  S.  E.  1003. 

Pennsylvania.  Falyk  v.  Penn- 
sylvania R.  Co.,  256  Pa.  397,  100 
Atl.    961. 

Virginia.  Southern  R.  Co.  v. 
Jacob.s.  116  Va.  189,  81  S.  E.  99. 

Washington.  Aldread  v.  North- 
ern Pac.  R.  Co.,  93  Wash.  209,  160 
Pac.   429. 

A  fireman  on  a  train  contain- 
ing interstate  commerce  was 
within  the  federal  Act  while  en- 
gaged in  filling  the  engine  with 
water   from   a  tank.     Texas  &   P. 

R.  Co.  v.  Williams,  Tex.  Civ. 

App.  ,  200  S.  W.  1149. 

18.  Lloyd  v.  Southern  R.  Co., 
166  N.  C.  24.  7  N.  C.  C.  A.  520.  81 
S.  E.  1003.  aff'd  in  239  U.  S.  496. 
60  L.  Ed.  402,  36  Sup.  Ct.  210, 
wheroin    the    court    said:      "It    is 


insisted  that  the  trial  court 
should  have  given  the  instruction 
requested  by  the  railroad  company 
to  the  effect  that  upon  the  facts 
shown  the  plaintiff  was  not  en- 
gaged in  interstate  commerce  at 
the  time  of  his  injury.  Upon 
this  subject  there  is  testimony  in 
the  record  to  support  the  allega- 
tions of  plaintiff's  petition  and 
the  charge  to  the  jury  are  given. 
The  trial  court  charged  that  in 
order  to  recover,  the  burden  was 
upon  the  plaintiff  to  show  that  at 
the  time  he  received  his  injury  he 
was  engaged  in  interstate  com- 
merce. In  refusing  the  request 
asked,  and  leaving  the  issue  to 
the  jury,  the  trial  court  committea 
no  error,  and  the  Supreme  Court 
of  the  State  rightly  affirmed  the 
judgment  in  that  respect." 

19.  North  Carolina  R.  Co.  v. 
Zachary,  232  U.  S.  248,  58  L.  Ed. 
591,  34  Sup.  Ct.  305.  9  N.  C.  C. 
A.  109,  Ann.  Cas.  1914C  159.  Ac- 
cord: Alabama  Great  Southern 
R.  Co.  v.  Skotzy,  196  Ala.  25.  71 
So.  335,  citing  Roberts'  Injuries  to 
Interstate  Employes. 


862  Injuries  to  Interstate  Employes.         [§  497 

he  witliin  the  terms  of  the  act.'°     Applying  the  same 
principle,   car   inspectors  looking   over   and   inspecting 
cars  in  interstate  trains  have  been  held  to  he  engaged 
in  interstate  commerce.^^    A  freight  conductor  of  a  train 
loaded  with  both  interstate  and  intrastate  freight  which 
had  just  been  made  up  at  a  terminal,  walked  to  the  head 
of  the  train  to  give  the  engineer  his  clearance  card  and, 
while  returning  to  the  caboose,  he  walked  along  a  scale 
track  on  which   some   switching  was  being  done,   and 
inspected  the  train  as  he  walked.     He  was  hurt  on  the 
scale  track.     Answering  the  argument  of  counsel  that 
his  employment  did  not  require  him  to  walk  on  this  scale 
track,  the  court  said:    ''While  it  may  not  have  been  his 
duty  and  was  carelessness  on  his  part,  under  the  facts 
of  this  case,  to  walk  upon  said  scale  track,  still  w^e  think 
he  was  engaged  in  interstate  commerce  to  the   extent 
of  getting  his  train  ready  for  that  purpose.    It  seems  to 
us  that  preparation  was  being  made  to  have  his  train 
leave  Spirit  Lake  and  that  he  was  engaged  in  getting 
his  train  ready  for  the  transportation  of  freight  both 
within  the  state  and  beyond  its  boundaries  and  that  he 
was  engaged  in  interstate  commerce  within  the  meaning 
of  that  term  as  used  in  said  Act  of  Congress.  "^^     An 
engineer  upon  his  engine  preparing  it  to  be  attached 
to  an  interstate  train  for  the  purpose  of  hauling  it,  is 
engaged  in  interstate  commerce. ^^    An  employe  engaged 
in  firing  a  locomotive  preparatory  for  an  interstate  trip 
and  in  loading  a  barrel  of  oil  thereon  from  an  adjacent 
store  house,  was  governed  by  the  federal  act.^* .  A  car 
inspector,  injured  while  disconnecting  the   steam   pipe 
between  the  engine  and  cars  of  an  interstate  passenger 

20.  Bramlett  v.  Southern  R.  Co.,  22.     Neil  v.  Idaho  &  W.  N.  R. 
98  S.  C.  319,  82  S.  E.  501.    Accord:  R.,  22  Idaho  74,  125  Pac.  331. 
Pennsylvania    Co.    v.    Donat,    239  23.     Bower  v.  Chicago  &  N.  W. 
U.   S.   50,   60   L.   Ed.    139,   36   Sup.  r.  Co.,  96  Neb.  419,  148  N.  W.  145. 
Ct.  4;     Carpenter  v.  Central  Ver-  24.       Tonsellito     v.    New     York 
mont  R.  Co.,  90  Vt.  35,  96  Atl.  373.  ^^^^    ^  ^    ^.^^^  ^    ^^^  ^^  ^    j 

21.  Dutton    V.    Atlantic    Coast      ^^  ^^  ^^^  ^^.^  ^^  ^^.^ 

^"2^63"  ^^Z^'i   "  e'r^;   point  in  244  H.  S.  360,  61  U   Ed. 

Co.  V.  Ayers,  Tex.  Civ.  App.   1191>  37  Sup.  Ct.  620,  14  N.  C.  C. 

,  192  S.  W.  310.  A.  1072. 


<^  498]  Train  anu  Swiiching  Crews.  863 

train  in  order  to  couple  anotlier  enj^'ine  thereto  for  tlie 
continuaiK^e  of  the  movement  of  the  train,  was  en<<age(] 
in  interstate  commerce.''  'i'lic  movement  of  an  engine 
from  tlie  roundlionse  i)r('i)aratory  to  attacliin^  it  to 
cars  to  be  run  in  interstate  commerce,  is  such  tliat  an 
employe  engaged  therein  is  emijloyed  in  interstate 
commerce.-" 

§  498.  Beginning-  and  Termination  of  Federal  Con- 
trol over  Crews  on  Trains  Carrying  Interstate  Commerce. 
Tlie  relation  of  master  and  servant,  in  so  far  as  the  obli- 
gation to  protect  the  employe  is  concerned,  ordinarily 
begins  when  the  employe  is  necessarily  on  the  premises 
of  the  master  pursuant  to  his  contract  of  employment;" 
but  as  the  class  of  railroad  employes  known  as  train 
crews  frequently  lodge,  sleep  and  eat  in  their  waycars 
in  railroad  yards  during  hours  olf  duty  after  the  termi- 
nation of  their  outgoing  "runs"  and  before  the  com- 
mencement of  their  return  trips,  their  status  while  thus 
off  duty  with  reference  to  interstate  employment  is  not 
altered  by  tlie  fact  that  they  procure  their  rest  and  sleep 
on  the  master's  premises  and  in  his  equipment.  For 
example,  it  has  been  held  that  train  crews  while  asleep 
in  their  waycars  in  railroad  yards  between  trips  are 
not  employed  in  interstate  commerce.'*  An  employe  is 
not  engaged  in  interstate  commerce  while  he  is  dressing 
and  getting  his  breakfast  in  the  waycar  before  the  be- 
ginning of  the  thirty  minutes  time  which  was  to  mark 
the  commencement  of  his  actual  duties  for  the  company.''* 

25.  Kansas  City  Southern  R.  court  said:  "The  plaintiff  being 
Co.  V.  Miller,  117  Ark.  396,  175  S.  required  to  report  for  duty  30 
W.  1164.  minutes  before  the  time  his  train 

26.  Byram  v.  Illinois  Cent.  R.  was  to  start  and  his  time  to  be- 
Cc,  172  Iowa  031,  154  N.  W.  1006.  gin,   it   is   difficult   to   say   how   it 

27.  Section  456,  supra,  where  can  be  accurately  said  that,  while 
the  status  of  employes  going  to  dressing  and  getting  breakfast  and 
and  from  their  work  is  discussed.  before    the    beginning    of    the    30 

28.  Pryor  v.  Bishop,  148  C.  C.  minutes  time  which,  according  to 
A.  25,  234  Fed.  9.  his   testimony,    was    to    mark    the 

29.  Bumstead  v.  Missouri  Pac.  beginning  of  his  actual  duties,  he 
R.  Co.,  99  Kan.  589,  L.  R.  A.  1917E  was  performing  any  duty  for  the 
734,    162    Pac.    347,    in    which    the  company  or  engaged  in  interstate 


864  Injuries  to  Interstate  Employes.         [^  498 

But  an  employe  is  deemed  to  be  in  the  master's  service 
whenever  lie  is  present  to  perform  his  duty  under  his 
contract  and  is  subject  to  orders,  although  he  may  not 
be  engaged  in  the  actual  performance  of  labor.'°     The 
employment  of  train  crews  does  not  terminate  the  in- 
stant the  train  reaches  its  destination  in  the  yards,  but 
continues  for  a  reasonable  time  thereafter  to  enable  an 
employe  to  wash  and  change  his  clothing  in  the  way- 
car   provided    with    the   conveniences   therefor,   before 
going  to  his  lodging  place.''      A  brakeman  who,  after 
finishing  his  regular  duties  on  the  arrival  of  his  train 
at  a  terminal,  went  to  a  saloon  and  from  there  started 
to  cross  over  a  track  to  go  to  the  station  to  learn  whether 
or  not  the  conductor  had  further  orders  for  him.     He 
was  injured  while  so  crossing  the  track  and  it  was  held 
that  he  was  engaged  in  interstate  commerce.'^     In  an- 
other case  it  appeared  that  an  engineer   came   into   a 
roundhouse  with  his  engine  at  10:30  p.  m.     His  regular 
course  of  duty  required  him  to  leave  the  same  place  at 
6:00  o'clock  on  the  next  morning.     Close  to  the  round- 
house the  railroad  company  had  a  small  boarding  house 
for  the  convenience  of  its  trainmen,  but  it  was  managed 
by  a  private  party.     The  engineer  after  leaving  his  en- 
gine at  the  roundhouse,  found  the  boarding  house  was 
full  and  he  then  returned  into  the  roundhouse  and,  climb- 
ing into  an  engine^  went  to  sleep.    About  4:30  a.  m.  the 
engine  in  which  he  was  asleep  was  taken   out   of  the 
roundhouse  to  a  coal  chute  in  the  yards.     There   the 
engineer  waked  up  and  got  off  of  the  engine.     He  in- 
quired where  his  engine  was  and  was  told  that  it  was 
in  the  roundhouse  on  a  certain  track.    He  was  last  seen 

commerce.      The    time    preceding      was  not  within  the  terms  of  the 

the  beginning  of  his  actual  duties      act. 

was  his  own  and  for  his  use  in  30.     Missouri,   K.  &  T.   Ry.  Co. 

^       ,  „,  in„-„r,       of  Texas  v.  Rentz,  Tex.  Civ. 

any  way  he  chose.     The  collision      ^^^  ^^^  ^  ^  ^^^ 

occurred,   not   while   he   was   mo-  ^^      ^^^^^^  ^    Virginian  R.  Co.. 

mentarily   or   temporarily   divert-  ^g  ^   y^   333^  ^^  ^^    (.   ^   ^    jq^^ 

ed    from    the    duties    of    his    em-  gg  g    ^    37 

ployment,  but  before  the  perform-  32.    Graber  v.  Duluth,  S.  S.  &  A. 

ance  of  such  duties  had  begun.    It  R.   Co.,   159   Wis.   414,   150   N.   W. 

must  be   held   therefore,   that   be  489. 


§  499']  Train  an'd  Swricnixo  Crkws.  865 

alive  ^oin<^  towards  tlie  roundliouse.  At  tin;  time  lie 
was  due  to  leave  that  iiiorniii^  he  could  not  be  found 
and  his  train  departed  without  him.  Later  in  the  morn- 
ing- he  was  found  in  an  open  uncovered  ])it  in  the  round- 
house, dead.  IJis  engine  had  been  standing  with  the 
step  over  this  pit,  which  was  about  eight  feet  deep.  In 
an  action  for  damages  brought  under  the  federal  act  for 
his  death  it  was  contended  that  he  was  not  at  the  time 
employed  in  interstate  connnerce.  There  was  evidence 
introduced  to  show  that  the  engine  when  it  was  breught 
into  the  yai'd  the  night  before  needed  repairs  and  that 
the  rules  re(iuired  lh(i  engineer  to  inspect  his  engine 
about  half  an  hour  before  leaving  time.  There  w^as  no 
evidence  that  the  engineer  was  forbidden  to  inspect  his 
engine  before  that  time;  but  there  was  evidence  that 
if  the  inspection  at  tlie  required  hour  disclosed  the  re- 
pairs had  not  been  made,  the  engine  would  have  to  be 
returned  to  the  roundhouse  for  that  purpose  and  that 
the  repairs  would  require  time  and  cause  delay.  Under 
these  circumstances  the  court  held  that  the  jury  was 
justified  in  finding  that  the  engineer,  at  the  time  of  his 
death,  was  employed  in  interstate  commerce. ^^ 

§  499.  Interstate  Employment  of  Train  Crews  on 
Return  Trip  Not  Shown  by  Proof  that  Train  on  Out- 
going Trip  Carried  Interstate  Freight.  In  the  oper- 
ation of  freight  trains  on  steam  railroads,  train  crews 
usually  live  and  have  their  headquarters  at  division 
points  from  which  they  run  or  operate  a  train  to  an- 
other terminal  or  division  ])oint  and  then  return  to  their 
headquarters  with  another  train,  the  same  caboose  or 
waycar  and  engine  frequently  being  used  on  both  trips, 
one  being  known  as  the  outgoing  and  the  other  the  re- 
turn trip.  For  the  purpose  of  determining  interstate 
employment,  the  round  trip  is  not  considered  as  one. 
The  trips,  both  out  and  back,  are  distinct,  and  the  fact 
that  a  train  on  an  outgoing  trip  contained  interstate 
trafhc  is  no  proof  whatever  to  show  that  tiie  train  crew 

33.      Padgett    v.    Seaboard    Air       aff'd  in  236   U.  S.  6C8.   59   L.   Ed. 
Line  Ry.,  99  S.  C.  364,  83  S.  E.  633,       777,  35  Sup.  Ct.  481. 

1    Control    CaiTiers    50 


866 


Injuries  to  Interstate  Employes. 


[§  499 


was  employed  in  interstate  commerce  on  the  return  trip 
or  rice  versa.  A  novel  attempt  to  show  that  a  conductor 
was  employed  in  interstate  commerce  on  a  return  trip 
was  made  because  his  train  on  the  outgoing  trip  car- 
ried interstate  freight.'*  But  this  theory  was  rejected 
by  the  United  States  Supreme  Court  on  writ  of  error.'' 

§  500.  Train  and  Switching  Crews  ''Making  Up" 
and  "Breaking  Up"  Interstate  Trains  in  Railroad  Yards. 
The  federal  act  governs  the  liability  of  railroad  com- 
panies to  employes  injured  while  "breaking  up"  or 
"making  up"  trains  containing  interstate  traffic  in  rail- 
road yards;  for  the  transportation  in  interstate  commerce 
includes  switching  movements  as  well  as  main  line  traf- 
fic.'*^   For  example,  a  fireman  on  a  switch  engine  at  the 


34.  Peery  v.  Illinois  Cent.  R. 
Co.,  123  Minn.  264,  143  N.  W.  724, 
128  Minn.  119,  150  N.  W.  382,  1103. 

35.  Illinois  Cent.  R.  Co.  v. 
Peery,  242  U.  S.  292,  61  L.  Ed. 
309,  37  Sup.  Ct.  122.  The  court, 
in  that  case,  said:  "The  plain- 
tiff's journey  was  confined  wholly 
to  Kentucky.  Only  the  circum- 
stance that  the  south-bound  train 
from  Paducah  carried  freight  des- 
tined to  beyond  Fulton  caused  him 
to  be  engaged  in  interstate  com- 
merce while  on  that  trip.  On  the 
return,  when  he  was  injured,  all 
the  freight  had  domestic  destina- 
tions. It  is  true  that  the  greater 
certainty  of  getting  traffic  going 
south  probably  was  the  chief 
reason  for  the  establishment  of 
the  circuit;  but  they  got  what 
they  could  coming  back;  gener- 
ally a  train  or  a  part  of  a  train. 
It  seems  to  us  extravagant  to  sub- 
ordinate the  northerly  to  the 
southerly  journey  so  completely 
that  if,  on  the  latter,  there  hap- 
pened to  be  a  parcel  destined  be- 
yond the  state,  the  conductor 
should  be  regarded  as  still  engag- 


ed in  commerce  among  the  states 
when  going  from  Fulton  to  Pa- 
ducah, even  though  he  had  a  full 
train  devoted  solely  to  domestic 
commerce.  For  it  must  be  re- 
membered that  if  the  northerly 
movement  is  regarded  as  the  in- 
cident of  the  southerly,  that  sub- 
ordination is  independent  of  the 
character  of  the  commerce,  and 
depends  solely  .  on  the  fact  that 
southerly  moving  business,  no 
matter  what,  induced  establishing 
the  route.  Therefore  it  does  not 
matter  that  the  interstate  traffic 
moving  south  was  greater  than, 
for  purposes  of  illustration,  we 
have  supposed." 

36.  Southern  Ry.  Co.  v.  Fish- 
er.   Ala. ,  74  So.  580;  Van- 

dalia  R.  Co.  v.  Holland,  183  Ind. 
438,   108  N.  E.   580. 

"The  plaintiff  was  engaged  as 
a  member  of  a  crew  at  the  time 
of  the  injury,  making  up  a  train 
to  go  to  Meridian,  Miss.  A  fair 
inference  from  the  testimony  as 
above  indicated  would  be  that 
there  was  a  temporary  lull  while 
some  of  the  crew  went  to  the  yard 


<§y  501]  Train  and  Switching  Crews.  867 

time  lie  was  injured  was  engaged  in  shifting  cars  in  a 
railroad  yard.  'J'lie  cars  which  were  attached  to  the 
engine  at  the  moment  of  the  accident  were  used  solely 
in  intrastate  commerce,  but  the  shifting  and  the  move- 
ment of  these  cars  were  necessary  for  the  purpose  of 
making  ui:>  a  train  to  which  cars  were  to  be  attached 
which  came  from  points  beyond  the  state  and  were  des- 
tined to  points  in  another  state.  The  fireman's  remedy 
was  under  the  federal  act.'^^  A  car  inspector  injured 
while  coupling  the  air  hose  on  a  string  of  cars  which 
were  to  become  a  part  of  a  train  then  being  made  up 
in  a  yard,  was  employed  in  interstate  commerce.''^  An 
engineer  engaged  in  switching  cars  from  a  train  at  a 
terminal  point  preparatory  to  placing  the  cars  in  the 
yard,  was  within  the  federal  act  while  so  employed.^'' 
A  member  of  a  switching  crew  engaged  in  switching  cars 
between  two  points  in  the  city  of  Indianapolis  for  the 
purpose  of  being  made  up  into  an  interstate  train  was 
employed  in  interstate  commerce.**'  A  switchman  as- 
sisting in  distributing  cars  from  an  interstate  train  and 
clearing  the  track  for  another  interstate  train  has  no 
remedy  under  a  state  law.*^ 

§  501.  Switching  Cars  Containing  Intrastate  Ship- 
ments into  or  out  of  Interstate  Trains — Early  Conflict- 
ing Rulings.  Whether  an  employe  engaged  in  "setting 
out"  a  car  containing  intrastate  shipments,  or  "pick- 
ing up"  a  car  containing  such  shijiments  from  or  into, 

office    for   some    purpose,    and    the  38.    Atchison,  T.  &  S.  F.  Ry.  Co. 

work  of  making  up  the  trains  had       v.  Ayers,  Tex.  Civ.  App.  , 

not     been     completed."     Alabama  192  S.  W.  310. 

Great  Southern  R.  Co.  v.  Skotzy,  39.     Kansas  City,  M.   &  0.   Ry. 

196  Ala.  25,  71  So.  335.  Co.   v.   Texas   v.    Pope,   Tex. 

37.  Southern    R.    Co.    v.    Jacobs,       civ.   App.  ,    152   S.   W.    185. 


40.  Vandalia  R.  Co.  v.  Holland, 
183    Ind.    438,    108    N.   E.    580. 

41.  Koennecke  v.  Seaboard  Air 


116  Va.   189,  81  S.  E.  99,  aff'd  in 

241   U.   S.  229,   60   L.   Ed.    970,   36 

Sup.  Ct.  588.     See  also  Louisville 

&  N.  R.  Co.  V.  Parker,  242   U.   S. 

13,   61  L.  Ed.  119,  37   Sup.  Ct.  4;       ^^"^   ^>'-    1^1    S.   C.   86,   85   S.   E. 

Pennsylvania  Co.  v.  Donat.  239  U.       374,  aff'd  on  this  point  in  239  U. 

S.   50,   60   L.  Ed.   139,   36   Sup.   Ct.       S.  352,  60  L.   Ed.  324.  36   Sup.  Ct. 

4.  126,  11  N.  C.  C.  A.  165. 


868  Injuries  to  Interstate  Employes.         [§  501 

as  the  case  may  be,  a  train  coiitaiiiin.i'-  interstate  traffic 
wliile  such  cars  are  detached  from  the  train,  is  employ- 
ed in  interstate  commerce,  was  a  question  which  gave 
the  courts  considerable  difficulty  in  solving,  and  resulted 
in  conflicting-  rulings  prior  to  a  decision  of  the  national 
Supreme  Court  in  a  leading  case.*'    In  the  Behrens  case,*' 
in  whicli  the  employe  was  declared  to  be  engaged  in 
intrastate  commerce,  the   switching  crew  was  engaged 
in  moving  cars  all  of  which  originated  in  and  were  des- 
tined to  points  in  the  same  state  so  that  the  decision  did 
not  reach  the  question  here  presented.     With  the  deci- 
sion in  the  Behrens  case  before  it,  the   supreme  court 
of  Kansas  decided  that  a  brakeman  was  employed  in 
interstate  commerce  while  doing  such  work."     In  the 
Thornbro  case  a  brakeman  on  an  interstate  train  was 
required  to  assist  in  "picking  up"  a  car  standing  on 
the  siding  and  consigned  to  another  point  in  the  same 
state.     This  car,  while  so  standing  on  the  siding,  was 
coupled  to  another  car.     The  engine  of  the  train  was 
uncoupled  from  the  train  and  moved  to  the  siding  and 
there  attached  to  the  two  cars  which  were  then  pulled 
out  from  the  siding  upon  the  main  line  in  order  to  place 
the  car  which  was  to  be  transported,  in  tlie  train.    After 
reaching  the  main  line,  and  while  the  two   cars  were 
coupled  up  to  the  engine  and  detached  from  the  train, 
the  brakeman  stepped  between  the  two  cars  to  uncouple 
the  one  that  was  to  be  taken  from  the  other  which  was 
not  to  be  taken.     Owing  to  a  defective  coupler  he  was 
killed.     The   defective   coupler  was  on   the   car  which 
was  to  be  taken  into  the  train.    Nothing  appeared  in  the 
record  as  to-  the  destination  of  the  other  car  on  the  sid- 
ing, except  that  the  crew  was  to  replace  it  on  the  siding 
where  they  found  it.     It  was  moved  to  the  main  line 
simply  because  it  stood  between  the  engine  and  car  which 
was  to  be  taken  into  the  train.     Under  these  facts  the 
court  held  that  the  brakeman  was  engaged  in  interstate 

42.  See    Section    502,    infra.  Ann.  Cas.  1914C  1*)3. 

43.  niinois  Cent.  R.  Co.  v.  Beh-  44.  Thornbro  v.  Kansas  City, 
rens,  233  U.  S.  473,  58  L.  Ed.  1051,  M.  &  O.  R.  Co.,  91  Kan.  684,  Ann. 
34  Sup.  Ct.  646,  10  N.  C.  C.  A.  153,  Cas.   1915D  314,  139  Pac.  410. 


§  501]  Train  and  Swrniiix*;  C'rrws.  869 

commerce   notwitli standing   the   fact  tliat   the   car,   the 
movement  of  wliicli  lie  was  assistinji^  at  the  time  of  liis 
death,  contained  only  intrastate  traffic  and  had  not  he- 
come  a  part  of  or  attaclied  to  the  train.    In  anotlier  case 
a  hrakeman  was  em])loyed  on  a  train  consisting]:  partly 
of  cars  destined  to  points  outside  of  the  state.''     Tlie 
train  was  running  between   two  points  in   Texas.     At 
Etlioline,  Texas,  a  station  on  tlie  line  between  the  two 
terminals,   a   car  loaded    with    merchandise   originating 
at  Dallas,  Texas,  was  ''set  out"  from  the  train  for  de- 
livery on  a  siding  at  that  station  by  making  a  "flying 
switch."    The  brakeman,  while  this  car  containing  intra- 
state traffic  was  being  switched,  was  standing  on  top 
of  it.    In  performing  the  "flying  switch,"  the  engine  and 
several  other  cars  in  the  train,  including  the  car  men- 
tioned, on  which  the  plaintiti'  was  standing,  were  detach- 
ed from  the  train  on  the  main  line.    During  the  perform- 
ance of  the  work  of  switching  this  car  on  the  siding,  the 
engineer  stopped  the  train  before  the  car  which  was  to 
be  "set  out"  was  cut  loose  from  the  other  cars  and  the 
brakeman  was  jerked  oif,  fell  and  was  injured.     Under 
those  conditions,  the  Federal  Circuit  Court  of  Appeals 
held  that  the  brakeman  was  not  engaged  in  interstate 
commei'ce.     The  only  difference  between  the  Thornbro 
and  the  Van  Brimmer  cases,  in  so  far  as  the  feature  under 
discussion  is  concerned,  was  that  in  the  former  the  em- 
ploye was  assisting  in  switching  an  intrastate  car  into 
an  interstate  train  and  in  the  latter  the  employe  was 
switching  an  intrastate  car  out  of  an  interstate  train. 
Of  course  this  difference  could  have  no  force  in  the  ap- 
plication of  the  principle  and   the   cases  are   squarely 
in  conflict,     in  the  Van  Brimmer  case,  it  appeared  that 
some  of  the  cars  contained  interstate  shipments  as  it  did 
in  the  Thornbro  case,  but  whether  the  cars  which  were 
attached  to  the  intrastate  car  "set  out"  at  the  time  of 
the  accident  contained  interstate  shipments,  does  not  ap- 
pear from  the  reported  (ii)iiiion  any  more  than  the  inter- 
state or  intrastate  character'  of  the  other  car  attached 

45.      Van    Brimmer   v.   Texas    &     P.    Ry.   Co.,    190   Fed.   394. 


870  Injuries  to  Interstate  Employes.         [^  501 

to  the  intrastate  ear  in  the  Thornbro  case.  Of  course, 
if  it  appeared  tliat  tlie  other  car  attached  to  the  intra- 
state car  in  tlie  Tliornbro  case,  at  the  moment  of  the 
accident  or  the  other  car  attached  to  the  intrastate  car 
in  the  Van  Brimmer  case,  contained  interstate  commerce, 
then  unquestionably  the  employe  was  engaged  in  inter- 
state commerce  under  other  rulings  of  the  national  Su- 
preme Court.  In  another  case  a  brakeman  was  injured 
through  the  negligence  of  a  fellow  servant  while  on  a 
sidetrack  setting  out  cars  containing  only  intrastate 
traffic,  although  the  train  on  which  he  was  working  con- 
tained interstate  shii)ments.  It  was  held  that  his  work 
on  the  sidetrack  was  an  incident  to  the  operation  of  the 
entire  train  in  interstate  commerce."  It  was  held  in  an- 
other case  that  a  fireman  engaged  in  switching  intra- 
state cars  to  be  put  in  a  train  composed  partly  of  cars 
containing  interstate  shipments,  was  employed  in  inter- 
state commerce  so  that  his  remedy  under  the  federal  act 
was  exclusive.*'  It  would  seem  on  principle  that  em- 
ployes engaged  in  picking  up  or  setting  out  intrastate 
cars  at  stations  between  terminals  out  of  or  into  inter- 
state trains,  are  engaged  in  interstate  commerce,  not- 
withstanding the  fact  that  the  car  is  detached  from  the 
train  and  on  a  siding  at  the  time  of  the  injury.***  A  train 
employe  is  either  employed  in  interstate  commerce  or 
intrastate  commerce.  He  cannot,  in  the  sense  of  deter- 
mining liability  under  the  federal  act,  be  employed  in 
both  kinds  of  commerce  at  the  same  time  so  as  to  have 
a  choice  of  remedy.  Now  under  the  conditions  described, 
if  the  employe  is  engaged  in  intrastate  commerce,  when 

46.      Carr    v.    New    York    Cent.  47.     Southern  R.  Co.  v.  Jacobs, 

&  H.  River  Co.,  77  N.  Y.  Misc.  346,  ii6  Va.  189,  81  S.  E.  99. 

136  K.  Y.  Supp.  501.     The  case  in  43.     Chicago     &    E.     R.     Co.    v. 

the  preceding  note  was  called  to      Feightner,    Ind.    App.    , 

the  attention  of  the  court  in  the  ^^4  j^    ^    g^g.     g^^j.^  ^    Atlantic 

Carr   case,   but   the   court   held    it  r.<~,       -,nn  t^-,    r^    aac 

^  ^  Coast  Line  R.  Co.,  169  N.  C.  446. 
to  be  in   conflict  with  other  fed- 

,   J     .  .  J       c       ^  t^  f„i  86    S.    E.    176;    Carpenter   v.    Cen- 

eral  decisions  and  refused  to  fol-  "      '^-  f       '■^ 

low    it.      See    next    paragraph    for       tral  Vermont  R.  Co.,  90  Vt.  35,  96 

decision  of  United  State  Supreme       Atl.  373. 

Court  in  the  Carr  case. 


'^  502]  Train  and  Switciiino  C'r^KNvs.  87J 

(Io(?s  the  interstate  cliaraeter  of  liis  cinpldx  nifiit  end) 
Is  it  when  tlie  car  wliile  still  siandinn-  wiiere  it  was  wlieii 
it  was  a  part  of  tiie  inlerstalc  tiain,  is  uncoupled?  Or 
is  it  when  it  luis  k'fl  the  main  line:'  The  entire  act  of 
s\vit(^liin^'  inlrastate  cars  from  the  time  of  the  uncou- 
plin.i^'  to  the  delivery  on  the  siding,  it  seems,  is  so  much 
a  ]iart  of  the  work  iii  the  movement  of  tliat  interstate 
train  and  so  directly  connected  with  that  movement  that 
the  employe  so  engaged,  should  he  held  to  be  employed 
in  interstate  commerce.  Indeed  such  employes'  connec- 
tion with  interstate  commerce  while  even  on  the  siding, 
is  as  direct  and  innnediate  as  the  work  of  employes  at 
terminals  in  preparing  interstate  trains  for  movement 
or  in  moving  materials  or  instrumentalities  to  be  used 
on  interstate  trains,  or  yard  clerks  checking  incoming 
trains  in  the  switching  yards  after  arrival  at  terminals 
and  after  the  train  employes  have  left  the  yards." 

§  502.  Status  of  Such  Employes  FinaJly  Held  to 
be  Under  Federal  Control.  But  the  doubt  and  uncertain- 
ty arising  from  the  conflicting  opinions  of  the  courts  dis- 
cussed in  the  foregoing  paragraph  as  to  the  interstate 
status  of  train  employes  ''picking  up"  or  "setting  out" 
cars  containing  intrastate  commerce  from  interstate 
trains,  was  removed  by  the  controlling  opinion  of  the 
national  Supreme  Court  in  New  York  Cent.  &  H.  River  R. 
Co.  V.  Carr,^"  in  holding  that  a  brakeman,  while  cutting 
out  an  intrastate  car  from  an  interstate  train  was  under 
federal  control.  The  court  said:  "The  railroad  com- 
pany insists,  that  when  the  two  cars  were  cut  out  of 
the  train  and  backed  into  a  siding,  they  lost  their  inter- 
state character,  so  that  Carr  while  working  thereon  was 

49.      North    Carolina    R.    Co.    v.  50.      238    U.    S.    260,    59    L.    Ed. 

Zachary,  232  U.  S.  248,  58  L.  Ed.  1298,  35  Sup.  Ct.  780,  9  N.  C.  C.  A. 

591,    34    Sup.   Ct.   305,    9    N.    C.   C  1. 

A.  109,  Ann.  Cas.  1914C  159;  Si.  A  brakeman  engaged  in  switch- 
Louis,  S.  F.  &  T.  R.  Co.  V.  Seale,  ing  an  intrastate  car  from  a  side- 
229  U.  S.  156,  57  L.  Ed.  1129,  33  track  into  an  interstate  train  is 
Sup.  Ct.  651.  Ann.  Cas.  19140  employed  in  interstate  commerco. 
156;  Neil  v.  Idaho  &  W.  N.  R.  R.,  Daley  v.  Boston  &  M.  R.  R..  ICi;  X 
92  Idaho  74,  125  Pac.  331.  V.  Supp.  840. 


872  Injuries  to  Interstate  Employes.         [§  502 

engaged  in  intrastate  commerce  and  not  entitled  to  re- 
cover under  the  federal  Employers'  Liability  Act.  The 
scope  of  that  statute  is  so  broad  that  it  covers  a  vast 
field  about  which  there  can  be  no  discussion.  But  owing 
to  the  fact  that,  during  the  same  day,  railroad  employes 
often  and  rapidly  pass  from  one  class  of  employment 
to  another,  the  courts  are  constantly  called  upon  to  de- 
cide those  close  questions  where  it  is  difficult  to  define 
the  line  which  divides  the  State  from  interstate  business. 
The  present  case  is  an  instance  of  that  kind — and  many 
arguments  have  been  advanced  by  the  Railway  Company 
to  support  its  contention  that,  as  these  two  cars  had 
been  cut  out  of  the  interstate  train  and  put  upon  a  sid- 
ing, it  could  not  be  said  that  one  working  thereon  was 
employed  in  interstate  commerce.  But  the  matter  is  not 
to  be  decided  by  considering  the  physical  position  of 
the  employe  at  the  moment  of  injury.  If  he  is  hurt  in 
the  course  of  his  employment  while  going  to  a  car  to  per- 
form an  interstate  duty;  or  if  he  is  injured  while  pre- 
paring an  engine  for  an  interstate  trip  he  is  entitled 
to  the  benefits  of  the  federal  Act,  although  the  accident 
occurred  i^rior  to  the  actual  coupling  of  the  engine  to 
the  interstate  cars.  St.  Louis,  etc.,  Ry.  v.  Scale,  229  U. 
S.  156;  North  Carolina  R.  R.  v.  Zachary,  232  U.  S.  248. 
This  case  is  within  the  principle  of  those  two  decisions. 
The  plaintiff  was  a  brakeman  on  an  interstate  train. 
As  such,  it  was  a  part  of  his  duty  to  assist  in  the  switch- 
ing, backing  and  uncoupling  of  the  two  cars  so  that  they 
might  be  left  on  a  siding  in  order  that  the  interstate 
train  might  proceed  on  its  journey.  In  performing  this 
duty  it  was  necessary  to  set  the  brake  of  the  car  still 
attached  to  the  interstate  engine,  so  that,  when  un- 
coupled, the  latter  might  return  to  the  interstate  traiu 
and  proceed  with  it,  with  Carr  and  the  other  interstate 
employes,  on  its  interstate  journey.  The  case  is  entirely 
different  from  that  of  111.  Cent.  R.  R.  v.  Behrens,  233 
U.  S.  473,  for  there  the  train  of  empty  cars  was  running 
between  two  points  in  the  same  State.  The  fact  that 
they  might  soon  thereafter  be  used  in  interstate  busi- 
ness did  not  affect  their  intrastate  status  at  the  time 


<§  503]  Train  and  S\viTcniN(i  Crkws.  873 

of  the  injiuy;  for,  if  the  faet  that  a  car  liad  l)eori  recent- 
ly engaged  in  interstate  coiTinierce,  or  was:  expected  soon 
to  })e  used  in  sucli  commerce,  brouglit  tliem  witliin  tlie 
class  of  interstate  vehicles  the  effect  would  ])e  to  ^'we 
every  car  on  the  line  that  character.  Each  case  must 
be  decided  in  tlie  li.n-ht  of  the  i)articular  facts  with  a 
view  of  determiniii<>'  wiicthci-,  at  the  ti'me  of  tlic  injury, 
the  employe  is  eni;ai;ed  in  interstate  Inisiness,  or  in  an 
act  which  is  so  directly  and  immediately  connected  with 
such  business  as  substantially  to  form  a  part  or  a  neces- 
sary incident  thereof.  Under  these  principles  the  plain- 
tiff is  to  be  treated  as  having  been  employed  in  inter- 
state commerce  at  the  time  of  his  injury  and  the  judg- 
ment in  his  favor  must  be  affirmed." 

§  503.  Test  in  Determining  when  Switching  Crews 
are  Employed  in  Interstate  Commerce.  The  ordinary 
and  usual  tost  in  determining  whether  switching  crews 
employed  in  railroad  yards  are  engaged  in  interstate 
commerce  is  whether  at  the  very  moment  of  the  acci- 
dent they  are  assisting  in  moving  interstate  traffic,  that 
is,  cars  either  loaded  or  empty,  originating  in  one  state 
and  destined  to  a  point  in  another  state,  territory  or 
foreign  country."    In  the  Behrens  case,  cited  in  the  notes, 

51.     United  States.         Seaboard  v.    Holland,    isa    Ind.    438,    108   N. 

Air    Line    Ry.    v.    Koennecke,    239  E.   580. 

U.  S.  352,  60  L.  Ed.  324,  36  Sup.  Iowa.      Bruckshaw    v.    Chicago. 

Ct.  126,  11  N.  C.  C.  A.  165;  Penn-  R.  i.  &  p.  r.  Co..  173  Iowa  207,  155 

sylvania  Co.   v.   Donat,   239   U.   S.  N.  W.  273. 

50,  60  L.   Ed.   139,  36   Sup.  Ct.  4;  Kansas.     Giersch  v.  Atchison.  T. 

Illinois   Cent.   R.    Co.   v.    Behrens,  &  s.  P.   R.   Co.,   98  Kan.   452.   158 

233  U.  S.  473,  58  L.  Ed.   1051,   34  Pac.  54. 

Sup.  Ct.   646,  10  N.   C.  C.  A.  153,  Kentucky.     Chesapeake  &  O.  R. 

Ann.    Cas.    1914C,    163,    reVg    192  Co.  v.   Shaw,   168  Ky.   537.  182   S 

Federal  581;    Clark  v.  Erie  R.  Co  ,  ^^    553.     Chesapeake  &  O.  R.   Co. 

230    Fed.   478;     Shanley   v.   Phila-  ^    shamblen,   166   Kv.  789,   179   S. 

delphia  &  R.  R.  Co..  221  Fed.  1012.  ^     33.^     Nashville."  C.    &    St.    L. 

Alabama.  Alabama  Great  South- 
ern R.  Co.  V.  Skotzy,  19(i  Ala.  25 
71  So.  335. 

Indiana.     Chicago    &   E.    R.    Co.  Michigan.    Walsh  v.  Lake  Shore 

V.  Feightner.  Ind.  App.  ,  &  ^'-  S.  R.  Co.,  185  Mich.  177,  151 

114    N.    E.    659;     Vandalia    R.    Co.  N.  W.  754. 


R.  Co.  V.  Banks,  156  Ky.  609,  161 
S.  W.  554. 


874 


Injuries  to  Interstate  Employes. 


[§  503 


a  fireman  on  a  switch  engine  was  killed.     The  switch- 
ini?  crew,  of  which  he  was  a  member,  had  been  engaged 


Minnesota.  Cramer  v.  Chicago. 
M.  &  St.  P.  R.  Co.,  134  Minn.  61, 
158  N.  W.  796;  Hurley  v.  Illinois 
Cent.  R.  Co.,  133  Minn.  101,  157 
N.  W.  1005;  Crandall  v.  Chicago 
Great  Western  R.  Co.,  127  Minn. 
498.  150  N.  W.  165;  Breske  v. 
IVIinneapolis  &  St.  L.  R.  Co.,  115 
Minn.  386,  132  N.  W.  337. 

Missouri.  Christy  v.  Wabash  R. 
Co.,  195  Mo.  App.  232,  191  S.  W. 
241;  Young  v.  Lusk,  268  Mo.  625, 
187  S.  W.  849;  Trowbridge  v. 
Kansas  City  &  W.  B.  Ry.,  192  Mo. 
App.  52,  179  S.  W.  777;  Moliter 
V.  Wabash  R.  Co.,  180  Mo.  App. 
84,  168  S.  W.  250;  Rich  v.  St. 
Louis  &  S.  F.  R.  Co.,  166  Mo.  App. 
379,  148  S.  W.  1011. 

New  Jersey.  Tonsellito  v.  New 
York  Cent.  &  H.  River  R.  Co.,  87 
N.  J.  L.  651,  94  Atl.  804. 

New  York.  Daley  v.  Boston  & 
M.  R.  R.,  156  N.  Y.  Supp.  840; 
Ruppell  V.  New  York  Cent.  R.  Co., 
171  N.  Y.  App.  Div.  832,  157  N.  Y. 
Supp.  1095;  Norton  v.  Erie  R.  Co., 
163  N.  Y.  App.  Div.  466.  14S  N. 
Y.  Supp.  769;  Barlow  v.  Lehigh 
Valley  R.  Co..  158  N.  Y.  App  Div. 
768,  143  N.  Y.  Supp.  1053. 

North  Carolina.  Sears  v.  At- 
lantic Coast  Line  R.  Co.,  169  N. 
C.  446,  86  S.  E.  176. 

Oklahoma.  St.  Louis  &  S.  F  R. 
Co.  V.  Brown,  45  Okla.  143,  144 
Pac.    1075. 

Oregon.  Montgomery  v.  South- 
ern Pac.  Co.,  64  Or.  597,  47  L.  R. 
A.    (N.   S.)    13,   131   Pac.   507. 

Pennsylvania.  Moyer  v.  Penn- 
sylvania R.  Co.,  247  Pa.  210,  93 
Atl.   282. 

Texas.     Geer  v.  St.  Louis,  S.  F. 

&   T.  Ry.   Co..  Tex.  ,   194 

S.  W.  939;    Kansas  City,  M.  &  0. 


Ry.  Co.  of  Texas  v.  Pope, Tex. 

Civ.  App.  ,  152  S.  W.  185. 

Virginia.  Southern  R.  Co.  v. 
Jacobs,  116  Va.  189,  81  &.  E.  99. 

Washington.  Aldread  v.  North- 
ern Pac.  R.  Co.,  93  Wash.  209,  160 
Pac.  429;  Snyder  v.  Great  North- 
ern R.  Co.,  88  Wash.  49,  152  Pac. 
703. 

A  switchman,  on  his  way  to 
work,  was  killed  while  crossing  a 
railroad  track  in  a  terminal  yard. 
He  was  regularly  employed  as  a 
member  of  a  switching  crew.  The 
evidence  disclosed  that  the  switch 
engine  used  by  this  switching 
crew  was  used  indiscriminately 
in  moving  both  interstate  and  in- 
trastate commerce.  But  as  there 
was  no  evidence,  at  the  time  he 
was  killed,  the  decedent  was  en- 
gaged in  interstate  commerce  or 
would  assist  in  the  switching  of 
interstate  cars  when  he  commenc- 
ed his  work,  it  was  held  by  the 
court  that  there  could  be  no  re- 
covery under  the  Federal  Employ- 
ers' Liability  Act.  Knowles  v. 
New  York,  N.  H.  &  H.  R.  Co.,  150 
N.  Y.   Supp.   99. 

On  the  other  hand,  a  switchman 
who  had  been  engaged  in  assist- 
ing the  movement  of  interstate 
cars  in  a  terminal,  was  at  the 
time  he  was  struck  by  a  freight 
train,  engaged  in  setting  switches 
so  that  the  switch  engine  could 
pass  from  a  side  track  to  the 
main  line.  In  deciding  that  this 
switchman  was  engaged  in  inter- 
state commerce,  the  federal  Cir- 
cuit Court  of  Appeals  for  the  Sixth 
District,  said:  "Did  the  proof 
sufficiently  tend  to  show  that  Mor- 
ford  was  engaged  in  interstate 
commerce?     At   the   moment,   the 


§  503] 


TuAiN  AM>  Switching  Crews. 


8 


to 


in  moving  interstate  commerce  a  short  while  before  he- 
was  kilh'd  and  tlic  crew  intended  witliin  a  short  time  to 


swiich  engine  was  not  hauling 
any  cars,  and  so  the  true  charac- 
ter of  the  employment  can  be  de- 
termined only  by  a  broader  view. 
The  evidence  showed  that  the  rail- 
way company,  in  and  about  these 
yards,  was  continuously  and  in- 
discriminately hauling  intrastate 
and  interstate  freight,  and  that, 
in  this  part  of  the  work,  no  dis- 
tinction whatever  was  made  be- 
ween  the  two  classes.  Describ- 
ing the  work  of  this  train  crew, 
the  yardmaster's  clerk  said  that 
it  handled  both  intrastate  and  in- 
terstate shipments,  that  it  handled 
all  classes  and  character  of  freight 
and  all  kinds  of  cars  during  its 
working  hours,  and  that  it  did  the 
work  of  transferring  and  putting 
into  other  trains  everything  that 
came  in  for  transfer,  making  no 
difference  or  distinction.  When 
it  was  sought  to  get  the  cars  con- 
stituting the  record  which  would 
show  exactly  what  cars  had  been 
handled  that  night,  counsel  for 
the  railroad  said:  'We  admit  that 
when  these  cars  come  in,  they  will 
show  freight  of  every  character 
and  description,  intrastate  and  in- 
terstate— both  kinds.'  In  answer 
to  the  statement  by  plaintiff's 
counsel  that  he  wished  'to  show 
further  that  this  character  of  in- 
terstate freight  came  in  there  and 
was  handled  by  this  train  (crew) 
that  night,'  counsel  for  the  rail- 
road company  admitted  that  at 
some  time  during  that  night  this 
particular  decedent  had  handled 
both  Intrastate  and  interstate 
freight,  and  that  other  freight  of 
both  kinds  was  coming  in  and 
going  out  of  those  yards,  and  that 
all    the    tracks    down    there    were 


used  for  the  handling  of  both.  Up- 
on this  stipulation  of  fact,  the 
trial  proceeded.  The  circum- 
stances here  are  not,  in  all  re- 
spects, the  same  as  those  found 
controlling  in  the  Pedersen  Case, 
229  U.  S.  146,  33  Sup.  Ct.  648,  57 
L.  Ed.  1125,  Ann.  Cas.  1914C,  153, 
or  the  Scale  Case,  229  U.  S.  15C, 
33  Sup.  Ct.  651,  57  L.  Ed.  1129, 
Ann.  Cas.  1914C,  156.  They  may 
also  be  distinguished,  though  we 
think  not  elTectively,  from  the 
facts  in  the  Zachary  Case,  232  U. 
S.  248,  34  Sup.  Ct.  305,  58  L.  Ed. 
591,  Ann.  Cas.  1914C,  159;  be- 
cause, in  the  latter  case,  it  defi- 
nitely appeared  that  the  engine 
was  about  to  be  used,  or  was  be- 
ing prepared  for  use,  in  distinct- 
ly interstate  commerce.  The 
same  difference  and  possible  dis- 
tinction exists  with  reference  to 
Law  V.  Illinois  Central  (C.  C.  A. 
6),  208  Fed.  869,  126  C.  C.  A.  27. 
However,  we  can  draw  no  infer- 
ence from  these  and  other  familiar 
decisions  of  the  Supreme  Court 
(including  the  Behrens  Case,  233 
U.  S.  473,  477,  34  Sup.  Ct.  646.  58 
L.  Ed.  1051,  Ann.  Cas.  1914C  163). 
and  the  way  in  which  they  have 
interpreted  the  statute,  save  that 
liability  is  created  where  the  serv- 
ice being  rendered  is  of  a  general, 
indiscriminate  character,  not  seg- 
regated and  tied  to  shipments 
within  the  state  (as  in  the  Beh- 
rens Case,  supra,  233  U.  S.  478,  34 
Sup.  Ct.  646,  58  L.  Ed.  1051,  Ann. 
Cas.  1914C  163),  but  applicable  at 
least  as  well  to  the  Interstate 
commerce  which  the  carrier  is 
conducting.  While  it  may  not  be 
easy    in    some   cases   to   draw    the 


87G  Injuries  to  Interstate  Employes.         ['^  503 

again  resume  the  work  of  moving  cars  loaded  with  inter- 
state freight.  Bnt  at  the  time  of  the  accident  the  switch- 
ing crew,  including  the  fireman,  was  employed  in  moving 
a  train  of  empties  from  one  point  in  New  Orleans  to  an- 
other, all  the  cars  in  the  "drag"  having  originated 
and  being  destined  to  points  within  the  same  state.  Un- 
der these  facts  the  United  States  Supreme  Court  held 
that  the  fireman,  while  so  engaged  and  killed  by  the 
negligence  of  a  co-employe,  was  not  engaged  in  inter- 
state commerce  within  the  meaning  of  the  act.  This  Avas 
the  first  case  reaching  that  court  under  the  Employers' 
Liability  Act  of  1908  in  which  it  was  held  that  the  em- 
ploye was  not  engaged  in  interstate  commerce  at  the 
time  of  the  accident.  The  reason,  as  given  by  the  court, 
for  so  holding  was  that  since  the  act  provides  that  the 
servant,  in  order  to  recover,  must  be  injured  "while  he 
is  employed  by  such  carrier  in  such  commerce"  and 
since  the  switching  crew  at  the  time  was  only  moving 
intrastate  cars,  the  fireman  while  so  working  was  not 
within  the  terms  of  the  act.  This  case  removed  a  doubt 
and  uncertainty  that  had  therefore  existed  among  other 
courts  as  to  whether  trainmen  and  switching  cars  en- 
gaged sometimes  in  intrastate  and  sometimes  in  inter- 
state commerce  came  within  the  provisions  of  the  act. 
The  court  said:  "Here,  at  the  time  of  the  fatal  injury, 
the  intestate  was  engaged  in  moving  several  cars,  all 
loaded  with  intrastate  freight  from  one  point  of  the  city 
to  another.  That  was  not  service  in  interstate  commerce 
and  so  the  injury  and  resulting  death  were  not  within 
the  statute.    That  he  was  expected,  upon  the  completion 

line   between    the   results   of   this  have  been  within  the  statute,  the 

view  and  a  breadth  of  construction  intial   burden   is   satisfied,   and   it 

which  would  make  the  statute  in-  is  for  the  defendant  to  show  the 

valid  under  the  Employers'  Liabil-  contrary.     It  follows  that  the  jury 

ity  Cases,  207   U.   S.  463,  28   Sup.  jj^   ^j^j^  ^^^^  j^^^  ^   ^.jgj^j.   ^^   ^^^^ 

Ct.   141,   52   L.  Ed.   297,   yet  cases  ^^  .^  ^.^    ^^^^  ^^  ^^^  ^.^^^^  ^.^ 

like  the   present   are  fairly   with-  ^^^^^^    ^^^^^^^.^    ^^^    employed    in 

in  the  line  of  validity.    They  hard-  .   ^      ^  ^  „   „.^.  ,        , 

ly    go    beyond    fixing    the    burden  interstate  commerce.     Pittsburgh, 

of  proof  and  declaring  that,  where  C.,   C.    &   St.    L.    R.   Co.    v.    Glmn, 

the  facts  show  the  case  may  well  135  C.  C.  A.  46,  219  Fed.  148. 


<§,  504 J  Train  and  Switching  Crews.  877 

of  tliiit  task,  to  on^^a^^e  in  another  which  woiihl  liave 
been  a  part  of  interstate  connnei-ce,  is  immaterial  under 
the  statute,  for  by  its  terms  tlie  true  test  is  th(.'  nature 
of  the  work  bein;L?  done  at  tlie  time  of  tlie  injury.  The 
question  is  correctly  answered  in  the  negative."'' 

§  504.     Doctrine  of  Behrens  Case  as  to  Interstate 
Status   of    Switching    Crews   Reaffirmed    and   Applied. 
The   ([uestion  as   to   when  members  of  switching  crews 
engaged  in  breaking  up,  and  making  up  trains  and  shift- 
ing ears  in  railroad  yards,  are  employed  in  interstate 
commerce,  was  submitted  to  the  Supreme  Court  nearly 
three  years  after  its  decision  in  the  Behrens  case,  supm;^ 
The  principle  was  again  reaffirmed  that  switching  crews 
are  not  employed  in  interstate  commerce  unless  at  the 
very  time  of  the  injury,  they  are  engaged   in  moving 
interstate  freight,  or  performing  some  act  so  directly  and 
immediately  connected  therewith  as  to  be  in  fact  a  part 
of  the  work  of  moving  interstate  traffic  or  a  necessary 
incident  thereto.     The   state  courts  in  that  case  held, 
under   facts  showing   employment   much   closer   to  the 
boundary  line  between  intrastate   and   interstate   com- 
merce than  in  the  Behrens  case,  that  Welsh,  at  the  time 
he  was  injured,  was  employed  exclusively  in  intrastate 
commerce,  or  at  least  that  he  was  not  employed  in  inter- 
state commerce.    Welsh  was  the  foreman  of  a  switching 
crew  working  at  night  in  a  terminal  yard,  being  de- 
nominated by  the  court  as  a  "yard  conductor."     His 
duties  consisted  in  assisting  in  shifting  cars,  breaking 
up  and  making  up  trains  under  the  orders  of  the  yard- 
master,  to  whom,  upon  the  completion  of  each  task,  ho 
went  for  further  orders  relative  to  his  duties,  that  is, 
when  any  orders  given  liim  as  to  the  movement  of  cars 
had  been  performed,  he  rei)orted   at  the  yardmaster's 
office  for  further  orders.    During  the  night,  Welsh,  with 

52.     See  also  Giersch  v.  Atchi-  53.    Erie   R.   Co.   v.   Welsh,    242 

son.  T.  &  S.  F.  R.  Co.,  98  Kan.  452,  U.  S.  303,  61  L.  Ed.  319.  37   Sup. 

158  Pac.  54;   Geer  v.  St.  Louis,  S.  Ct.    110,   aff'g  same  case   reported 

F.   &  T.   Ry.  Co.,  Tex.  ,  in  89  Ohio  St.  81,  105  N.  E.  189. 

194  S.  W.  939. 


878  Injuries  to  Interstate  Employes.         [^  504 

his  crew,  took  a  freight  ear  and  a  caboose  from  the  yard 
in  which  he  was  working,  to  another  yard  in  the  same 
city  where  the  car  loaded  with  freight  destined  to  a 
point  in  anotlier  state,  was  phiced  npon  a  siding  so  that 
it  might  be  made  up  into  a  train  by  another  crew.  He 
then  took  the  caboose  a  short  distance  further  and  placed 
it  upon  another  siding.  The  caboose,  so  far  as  it  ap- 
peared, was  not  to  go  beyond  the  state  line.  The  crew 
then  took  the  engine  to  a  water  plug  and  took  on  water 
and  then  returned  with  it  to  the  yard  where  Welsh  was 
employed.  On  the  return  journey  the  engine  was  slowed 
down  near  the  yard  master's  ofhce  so  that  Welsh  might 
report  for  further  orders,  all  previous  orders  having  been 
executed.  While  alighting  from  the  engine  at  that  place 
for  that  purpose,  he  was  injured.  It  also  appeared  that 
the  orders  which  Welsh  would  have  received  had  he 
not  been  injured  while  alighting  from  the  engine,  would 
have  required  him  to  immediately  assist  in  making  up 
an  interstate  train.  The  question  was  presented  to  the 
courts  whether  Welsh,  at  the  time  he  received  the  injury, 
was  employed  in  interstate  commerce,  and  the  court  was 
required  to  pass  upon  the  question  whether,  under  the 
testimony  and  all  the  admissible  inferences  therefrom, 
the  question  of  Welsh's  employment  in  interstate  com- 
merce should  have  been  submitted  to  the  jury.  The 
state  court  held  tliere  was  no  such  question  raised  by  the 
foregoing  facts.  The  Supreme  Court,  in  holding  that 
it  was  unable  to  conclude  that  the  state  court  committed 
manifest  error  in  so  deciding,  said:  "Upon  the  strength 
of  this  it  is  argued  that  his  act  at  the  moment  of  his 
injury  partook  of  the  nature  of  the  work  that,  but  for 
the  accidental  interruption,  he  would  have  been  called 
upon  to  perform.  In  our  opinion  this  view  is  untenable. 
By  the  terms  of  the  Employers'  Liability  Act  the  true 
test  is  the  nature  of  the  work  being  done  at  the  time 
of  the  injury,  and  the  mere  expectation  that  plaintiff 
would  presently  be  called  upon  to  perform  a  task  in 
interstate  commerce  is  not  sufficient  to  bring  the  case 
within  the  act.  Illinois  C.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  478,  58  L.  Ed.  1051,  1055,  34  Sup.  Ct.  Rep.  646,  Ann. 
Cas.  1914C,  163,  10  N.  C.  C.  A.  153.    There  remains  the 


"§>  505]  'I'h.mn  AM)  Switching  Cr?)ws.  870 

coiitciitiuii  that  plainlilTV  act  in  stcppiiij^  Troni  tli<'  yar<l 
engine  was  in  c()nij)l('li()ii  ot'  liis  trip  to  tlic  "l'\  1).  yard" 
with  the  interstate  car,  and   iicnce  was  itself  an  act  in 
furtherance   of   interstate    coinnierce.      This    cannot    be 
answered  by  saying,  in  the  words  used  arguendo  Ijv  the 
state  supreme  court  (89  Ohio  St.  88),  that  'lie  was  not 
then   and   there  eniph)yed   in  moving  or  liandling  cars 
engaged  in  intei-statc  coniinerce.'    The  question  remains 
whether  he  was  pert'orjning  an  act  so  directly  and  im- 
mediately  connected   with    iiis   ])revions   act   of  placing 
the  interstate  car  in  the  "F.  I),  yard'  as  to  be  a  part  of 
it  or  a  necessary  incident  thereto.     New  York  C.  &  H. 
R.  R.  Co.  V.  Carr,  238  U.  S.  260,  264,  59  L.  Ed.  1298, 
1300,  35  Sup.  Ct.  Rep.  780,  9  N.  C.  C.  A.  1;  Shanks  v. 
Deleware,  L.  &  W.  R.  Co.,  239  U.  S.  556,  559,  60  L.  Ed. 
436,  438,  L.  R.  A.  1916C,  797,  36  Sup.  Ct.  Rep.  188.    And 
this  depends  upon  whether  the  series  of  acts  that  he 
had  last  performed  was  properly  to  be  regarded  as  a 
succession  of  separate  tasks  or  as  a  single  and  indivis- 
ible task.     It  turns  u})on  no  interpretation  of  the  act  of 
Congress,   but   involves  simply  an  appreciation   of  the 
testimony  and  admissible  inferences  therefrom  in  order 
to  determine  wliether  there  was  a  question  to  be  sub- 
mitted to  the  jury  as  to  the  fact  of  employment  in  inter- 
state commerce.     The  state  courts   held  there  was  no 
such  (juestion,  and  we  cannot  say  that  in  so  concluding 
they  committed  manifest  error.     It  results  that,  in  the 
proper  exercise  of  the  jurisdiction  of  this  court  in  cases 
of  this  character,  the  decision  ought  not  to  be  disturbed." 

§  505.  Exceptions  to  Rule  that  Switching  Crews 
Moving  Intrastate  Cars  Exclusively  are  Governed  by 
State  Law.  Notwithstanding  the  rulings  in  the  cases 
discussed  in  the  foregoing  paragraphs,  there  may  be 
situations  and  circumstances  where  em])loyes  injured 
while  assisting  exclusively  in  tlie  inoveinent  of  intra- 
state cars  are  within  the  federal  act;  for,  if  such  em- 
ployment is  but  a  part  of  a  larger  task  in  interstate 
commerce,  or  is  a  necessary  preparatory  movement  in 
aid  of  interstate  transportation,  then  the  national  stat- 


880  Injuries  to  Interstate  Employes.         [*§>  505 

lite  applies  to  employes  so  engaged. •'^^■*  There  is  a  marked 
different  between  the  mere  expectation  that  an,  act  done 
in  intrastate  commerce  would  be  followed  by  other  work 
of  a  different  character  in  interstate  commerce/^'^  and 
doing  an  act  in  intrastate  commerce  for  the  purpose 
of  furthering  the  work  of  interstate  commerce.'"'*'  Thus, 
a  switchman,  in  order  to  place  two  cars  containing  inter- 
state traffic  on  a  private  switch,  found  it  necessary  to 
first  remove  two  empty  cars  from  the  switch  track.  The 
engine  was  uncoupled  from  the  loaded  cars  for  this  pur- 
pose and  while  being  used  in  removing  the  empty  cars 
' — purely  in  and  of  itself  an  intrastate  movement — the 
switchman  was  injured.  A  trial  court  refused  a  request 
that  he  was  not  engaged  in  interstate  commerce  under 
those  conditions  and  properly  submitted  the  cause  to 
the  jury."  Again,  a  fireman  on  a  switch  engine  in  a 
railroad  yard  at  the  time  of  his  injury  was  assisting 
in  the  movement  of  an  empty  car  from  one  track  to 
another.  The  car  was  not  moving  in  interstate  com- 
merce, but  the  movement  was  necessary  for  the  pur- 
pose of  reaching  and  moving  another  interstate  car,  that 
is,  it  was  necessary  to  remove  the  intrastate  car  before 
the  interstate  car  could  be  reached.  Notwithstanding 
that  the  fireman  at  the  time  was  engaged  purely  in 
moving  an  intrastate  car,  the  purpose  of  the  movement  as 

54.  Southern  R.  Co.  v.  Puckett,  J.,  said:  '"There  was  evidence 
244  U.  S.  571,  61  L.  Ed.  1321.  37  tending  to  show  that  in  order  to 
Sup.  Ct.  703.  complete    this    movement    it    be- 

55.  Illinois  Cent.  R.  Co.  v.  came  necessary  to  uncouple  the 
V.  Behrens,  233  U.  S.  473,  58  L.  Ed.  engine  from  the  loaded  cars  and 
1051,  34  Sup.  Ct.  046,  10  N.  C.  C.  with  it  to  remove  two  empty 
A.  153,  Ann.  Cas.  1914C  163.  ones  from  the  private  track.  While 

56.  Louisville  &  N.  R.  Co.  v.  engaged  about  the  removal  de- 
Parker,  242  U.  S.  13,  61  L.  Ed.  fendant  in  error  was  injured. 
119,  37  Sup.  Ct.  4;  New  York  Cent.  The  trial  court  submitted  to  the 
&  H.  River  R.  Co.  v.  Carr,  238  U.  jury  for  determination  whether  he 
S.  260,  59  L.  Ed.  1298,  35  Sup.  Ct  was  engaged  in  interstate  com- 
780,   9  N.  C.  C.  A.  1.  merce  at  the  time  of  the  injury, 

57.  Pennsylvania  Co.  v.  Donat,  and  in  approving  such  action  (224 
239  U.  S.  50,  60  L.  Ed.  139,  36  Fed.  Rep.  1021)  the  Circuit  Court 
Sup.  Ct.  4,  in  which  McReynolds,  of  Appeals  was  clearly  right." 


§  506] 


TiLVIX  AND   SwiTCUlXG   (JrEWS. 


881 


a  whole  controlled  and,  licricc,  he  was  engaged  in  inter 
state  eoniincrce.^^ 


§  506.  Switching  Movements  of  Empty  Cars  in  Rail- 
road Yards  to  be  Loaded  with  Interstate  Freight.  An 
employe  engaged  in  switcliing  an  empty  car  in  a  rail- 
road yard  for  the  purpose  of  loading  it  with  inter.state 
freight,  is  employed  in  federal  commerce  as  distinguish- 
ed from  state  commerce;'''  but  if  tlie  car,  at  tlie  time  of 
the  movement  and  injury,  has  not  been  assigned  to  be 
loaded  with  interstate  freight,  or  if  it  is  not  known 
whether  it  is  to  be  loaded  with  interstate  freight,  the 
employe  is  not  within  the  federal  statute.  This  rule  is 
a  corollary  of  tlio  ])riii('i|»le  that  the  character  of  tlie 
movement  of  a  car  as  an  instrument  of  commerce  de- 
pends on  its  employment  at  the  time  and  not  upon  re- 


58.  Louisville  &  N.  R.  Co.  v. 
Parker,  242  U.  S.  13,  61  L.  Ed.  119, 
37  Sup.  Ct.  4. 

59.  United  States.  Shanley  v. 
Philadelphia  &  R.  R.  Co.,  221  Fed. 
1012;  Chicago  &  N.  W.  R.  Co.  v. 
United  States,  93  C.  C.  A.  450,  168 
Fed.  236,  21  L.  R.  A.   (N.  S.)   690. 

Arkansas.  St.  Louis  Southwest- 
ern R.  Co.  V.  Anderson,  117  Ark. 
41,   173   S.   W.   834. 

Iowa.  Bruckshaw  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  173  Iowa  207,  155 
N.  W.  273. 

Minnesota.  Breske  v.  Minneapo- 
lis &  St.  P.  R.  Co.,  115  Minn.  386, 
132  N.  W.  337. 

New  Jersey.  Moran  v.  Central 
R.  Co  of  New  .Jersey,  88  N.  .1.  L. 
730,  96  Atl.  1023. 

Missouri.  Trowbridge  v.  Kansas 
City  &  W.  B.  Ry.,  192  Mo.  App.  52. 
179   S.   W.   777. 

Washington.  Aldread  v.  North- 
ern P.  Ry.  Co.,  93  Wash.  209,  160 
Pac.  429. 


"While  in  this  case,  deceased 
was  engaged  in  switching  a  car  to 
a  place  in  defendant's  yards, 
where,  it  is  true,  it  was  to  be 
placed  in  a  local  train  and  taken 
to  a  station  a  dozen  miles  away, 
but  for  the  purpose  of  being 
loaded  that  day  with  an  inter- 
state shipment.  No  sound  reason 
can  be  suggested  why  that  was 
not  interstate  service.  We  think 
it  was  such  service  in  a  special 
and  immediate  sense.  For  the  use> 
to  which  the  car  was  to  be  put 
was  the  already  ascertained  ser- 
vice of  a  specific  shipment  into 
another  state;  and  that  shipment 
was  to  be  made  on  the  day  the  car 
was  being  shipped  out  of  the  yards 
for  that  use.  The  fact  that  it  was 
taken  out  of  the  yards  at  Moberly, 
a  few  miles  away,  would  not  be 
different  in  effect,  from  taking  it 
from  the  yards  at  Sturgeon."— 
Ellison,   J.    in   Christy   v.   Wabash 


1    Control    Carriers   r<6 


882  Injuries  to  Interstate  Employes.         [<^  506 


60 


mote   probabilities    or   iipou    accidental   later    events 
Illustrative  applications  of  the  rule  were  made  in   the 
cases  cited  in  the  notes."     In  the  Minnesota  case,  the 
Sniireme  Court  of  that  state  properly  held  that  such  a 
switchini>-  movement  was  interstate  in  character  because 
the  ol\iect  of  moving  the  car  was  to  load  it  with  inter- 
state commodities  and  at  tlie  time  of  the  movement  the 
car  was  assigned  for  that  purpose.    In  the  Illinois  case, 
it  was  held  that  an  injury  sustained  by  an  employe  in 
the  movement  of  an  empty  car  to  be  loaded  with  freight 
was  governed  by  the  state  law  as  it  did  not  appear  from 
the  evidence  that  the  car,  at  the  time  of  the  injury,  was 
directed  to  be  moved  for  that  express  purpose  of  load- 
ing it  with  merchandise  to  be  shipped  to  another  state. 
The  Illinois  Supreme  Court  correctly  described  the  dis- 
tinction as  follows:   "It  is  the  contention  of  the  plain- 
tiff in  error  that  inasmuch  as  10  of  these  15  cars,  when 
they  reached   the  loading  platform,   were   loaded  with 
meat  to  be  shipped  outside  of  the  state,  they  were  a 
part  of  an  interstate  movement  from  the  time  they  were 
taken  out  of  the  car  shops  by  the  switching  crew,  and 
that  the  deceased  was  therefore  engaged  in  interstate 
commerce  at  the  time  of  his  injury  and  was  not  entitled 
to   compensation  under  the  Illinois   act.     It   has   been 
held  that,  if  the  object  of  a  switching  movement  is  the 
placing  of  an  empty  car  in  a  position  to  receive  a  load 
to  be  carried  out  of  the  state,  the  car  is  engaged  in 
moving  interstate  commerce  from  the  moment  the  switch- 
ing movement  begins.    Breske  v.  Minneapolis  &  St.  Louis 
Eailway  Co.,  115  Minn.  386,  132  N.  W.   337.     This  is 
only  where  the  switching  movement  is  directed  for  the 
express    purpose    of    loading    the    particular    car    with 
material  to  be  shipped  out  of  the  state.     In  this  case  no 
particular  one  or  more  of  the  15  cars  were  designed  to 
be  used  to  carry  an  interstate  shipment  at  the  time  the 

R.  Co..  195  Mo.  App.  232,  191  S.  W.  61.    Chicago  Junct.  R.  Co.  v.  In. 

241.  dustrial  Board  of  lUinois,  277  111. 

60.    Minneapolis  &  St.  L.  R.  Co.  512,  115  N.  E.  647;  Breske  v.  Min- 

V.  Winters,  242  U.  S.  353,  61  L.  Ed  neapolis  &  St.  L.  R.  Co.,  115  Minn. 

358,  37  Sup.  Ct.  170,  13  N.  C.  C.  A  386,   132   N.  W.   337. 
1127. 


§  507]  Train  and  Switching  Crews.  883 

conductor  of  the  switching  crew  was  ordered  to  move 
them  to  the  stoia,^-o  track.  It  was  not  until  tliese  cars 
were  again  moved  to  tlie  loading  platform,  and  it  was 
known  what  material  was  ready  to  l)e  loaded,  that  it 
was  determined  that  10  of  them  should  he  loaded  for 
destinations  outside  the  state  and  one  to  carry  a  ship- 
ment to  a  i)oint  within  the  state.  The  movement  of 
the  string  of  cars  by  the  switching  crew  of  whicli  the 
deceased  was  a  member  was  a  local  movement,  and,  as 
none  of  these  cars  had  at  that  time  been  selected  to 
l)articipate  in  an  interstate  shipment,  the  deceased  was 
not  engaged  in  interstate  commerce,  and  the  circuit 
court  properly  approved  and  confirmed  the  award  and 
decision  of  the  Industrial  Board.  The  icing  of  the  cars 
does  not  change  the  situation.  The  same  procedure  in 
icing  was  required  in  all  the  shipments  made  by  Armour 
&  Co.,  wliether  interstate  or  intrastate,  and  was,  in  ef- 
fect, a  part  of  the  equipment  of  the  cars  themselves." 

§  507.  Weighing  of  Cars  Containing  Interstate 
Freight  after  Unloading  to  Determine  Weight  of  Con- 
tents. Ill  the  handling  of  cars  containing  freight  from 
one  state  to  another,  employes  of  railroad  companies  are 
frequently  required  to  ascertain  the  weight  of  contents 
at  the  time  of  the  final  delivery.  This  is  done  by 
weighing  the  car  while  loaded,  and  again  after  being 
emptied.  Employes  engaged  in  such  work  are  within 
the  federal  act  if  the  cars  so  weighed  contain  trafiic 
moving  from  one  state  to  another.°=^  "The  plaintiff," 
said  the  court  in  the  case  cited,  "is  a  citizen  of  Ohio. 
He  was  employed  by  the  defendant  as  a  brakeman  on 
freight  trains.  In  the  regular  course  of  its  business  it 
had  delivered  to  a  consignee  in  West  Virginia  sundry 
loaded  cars  which  had  come  from  points  outside  of  the 
latter  state.  These  cars  had  been  unloaded.  The  de- 
fendant sent  a  train  to  take  them  back.  The  plaintiff 
was  one  of  the  crew  of  such  train.  On  the  switch  on 
which  these  cars  were  there  were  scales.     The  loaded 

62.    Wheeling    Terminal    R.    Co.      v.   Russell,    126   C.   C.  A.    519,   209 

Fed.  795. 


884  Injuries  to  Interstate  Employes.         [^  507 

cars  bad  beeu  weighed  at  the  time  of  delivery.  In  order 
to  determine  the  net  weight  of  their  contents,  the  cars 
had  to  be  weighed  after  they  had  been  emptied.  Such 
weighing  was  habitually  done  by  defendant's  train 
crew.  *  *  *  ^\iQ  cars  were  being  weighed  to  deter- 
mine the  net  weight  of  the  interstate  load  carried  by 
them  to  the  West  Virginia  consignee.  Those  who  were 
engaged  in  ascertaining  such  weights  were  themselves 
employed  in  that  commerce." 

§  508.  Switching  Movement  of  Cars  After  Termina- 
tion of  Interstate  Journey  or  After  Receipt  by  Consignee. 
A  switching  movement  which  constitutes  the  last  lap 
of  an  interstate  journey  is  a  part  of  interstate  transpor- 
tation, and  employes  engaged  therein  are  under  the 
Federal  Acif^  but  a  local  movement  of  cars  after  an 
interstate  journey  is  ended,  is  not  under  federal  con- 
trol.*^* Thus,  a  carrier  transported  cars  containing  coal 
to  be  used  on  its  locomotives,  from  Sayre,  Pa.,  to  Cort- 
land, N.  Y.  After  being  received  in  the  Cortland  yards, 
they  remained  there  upon  sidings  and  switches.  About 
two  weeks  later  the  cars  were  removed  to  an  unloading 
trestle  at  a  coal  chute  for  the  purpose  of  placing  the 

G3.    Jacobs  v.   Southern   R.   Co.,  Co.   of   Texas   v.   Pace,  Tex. 

241  U.   S.   229,   60   L.   Ed.   970,   36  Civ.   App.   ,    184    S.   W.    1051; 

Sup.  Ct.  588,  aff'g  116  Va.  189,  81  Kansas  City,  M.  &  O.  R.  Ry.  Co.  v. 

S.  E.  99;   Chicago,  M.  &  St.  P.  R.  Texas  v.  Pope, Tex.  Civ.  App. 

Co.  V.  United  States,  91  C.  C.  A.  ,  152  S.  W.  185. 

373,  165  Fed.  423,  20  L.  R.  A.   (N.  A    car    loaded    with    interstate 

S.)   473;    Chesapeake  &  O.  R.  Co.  freight  had  been  delivered  at  the 

V.   Shaw,   168   Ky.   537,   182    S.   W.  mill  of  the  consignee.    After  being 

653;     Easter  v,  Virginian  R.  Co.,  partly  unloaded,  it  became  neces- 

76  W.  Va.  383,  11  N.  C.  C.  A.  101.  sary  to  move  the  car  in  its  part- 

86  S.  E.  37.  ly  unloaded  condition;    but  it  was 

64.    Chicago,  B.  &  Q.  R.  Co.  v.  ^^^.^  returned  to  complete  the  un- 


Harrington,  241  U.  S.  177,  60  L. 
Ed.  941,  36  Sup.  Ct.  517,  11  N.  C. 
C.  A.  992,  aff'g  (Mo.  App.),  180 
S.  W.  443;   Pennsylvania  R.  Co.  v 


loading  and  was  then  to  be  load- 
ed with  freight  for  another  state. 
The   service   of   the  car  in   inter- 


Knox    134  CCA    426    218  Fed  state  commerce  had  not  been  com- 

748;    Louisville    &  N.    R.    Co.    v.  pleted.     Wagner  v.  Chicago,  R.  I. 

Strange's  Adm'x,  156  Ky.  439,  161       &  P.  Ry.  Co.,  111. ,  115  N. 

S.  W.  239;    Missouri,  K.  &  T.  Ry.  E.   201. 


§  509]  TiuiN  AND  Switching  Crews.  885 

coal  in  the  cliute.  During  this  last  movement  an  em- 
])loyo  was  injured.  Upon  these  facts,  Mr.  Justice  Mc- 
Keynolds,  of  the  national  Supreme  Court,  said:"''  ''We 
think  their  interstate  movement  terminated  before  the 
cars  left  the  sidings,  and  that  while  removing  tliem  th<^ 
switching  crew  was  not  employed  in  interstate  com- 
merce. The  essential  facts  in  Chicago,  B.  &  Q.  R.  Co. 
V.  llarrington,  241  U.  S.  177,  did  not  materially  differ 
from  those  now  presented.  There  we  sustained  a  re- 
covery })y  an  employe,  holding  he  was  not  engaged  in 
inteislate  coiiiinerce;  and  that  decision  is  in  conflict 
with  the  conclusion  of  the  Court  of  Appeals.  The  judg- 
ment under  review  must  be  reversed,  etc."  Where  cars 
were  billed  from  Pensacola,  Fla.,  to  Corbin,  Ky.,  and 
after  the  final  delivery  at  Corbin,  a  switchman  assisting 
in  a  new  and  independent  movement  of  the  cars  from 
Corbin  to  Barbourville,  Ky.,  w^as  not  engaged  in  inter- 
state commerce.'"^ 

§  509.  Switching  Cars  Loaded  with  Interstate 
Freight  for  Repairs.  The  Employers'  Inability  Act  ap- 
plies to  switching  crews  engaged  in  transferring  cars 
loaded  with  interstate  freight  to  repair  tracks  for  tem- 
porary repairs.**^  A  mere  delay  in  the  movement  of  a 
car  loaded  with  interstate  freight  does  not  result  in  its 
withdrawal   fi'om   interstate   commerce.®^     "In   passing 

65.  Lehigh  Valley  R.  Co.  v.  track'  for  repair  at  the  time  he 
Barlow,  244  U.  S.  183,  61  L.  Ed.  was  injured  the  box  car  which  was 
1070,  37  Sup.  Ct.  515.  loaded    with    timber,    and    which 

66.  Louisville  &  N.  R.  Co.  v.  was  clearly  being  used  by 
Meador's  Adm'r,  176  Ky.  765,  197  its  carrier  in  interstate  commerce. 
S.  W.  440.  The    evidence    requires    this    con- 

67.  Geer   v.   St.   Louis,    S.   F.   &  elusion.     We  think  that  when  the 

T.  Ry.  Co.,  Tex.  ,  194  S.  deceased,  Geer,  was  carrying  this 

W.   939.   wherein   the   court   said:  car   to   the   'repair   track'   for   re- 

"If  there  is  any  question  of  fact  pairs  he  was  engaged  in  a  work 

involved  in  whether  the  empty  box  so  intimately  connected     with  in- 

car   and   the   oil   tank   car   which  terstate  commerce  as  to  be  prac- 

was  not  proven  to  be  loaded  were  tically  a  part  of  it." 

being   used   by   the  carrier   in   in-  68.    Great    Northern    R.    Co.    v. 

terstate  commerce,  it  would  seem  Otos,  239  U.  S.  349.  60  L.  Ed.  322, 

immaterial   here,    in    view    of    the  36  Sup.  Ct.  124.     See  Section  487, 

undisputed   evidence  that  the  de-  supra,   as   to   interstate   status   of 

ceased  was  carrying  to  the  'repair  employes  repairing  cars  in  transit- 


886  Injuries  to  Interstate  Employes.         [^  509 

upon  the  sufficiency  of  the  instructions  tlierefore,  we 
must  assume  that  one  of  the  three  unrepaired  cars  which 
were  being  replaced  upon  the  repair  track  was  loaded 
with  lumber  in  South  Dakota.  There  was  competent 
evidence  tending  to  show  that  fact.  The  question  of 
fact  was  for  the  jury.  If  so  loaded,  that  fact  fixed  its 
status  for  the  time  as  an  interstate  car.  The  interstate 
transportation  to  which  it  was  then  devoted  was  not 
ended  merely  because  the  car  had  become  temporarily 
disabled  and  was  placed  upon  the  repair  track  where  it 
was  awaiting  its  turn  for  repairs.  While  so  placed  and 
waiting  it  was  still  in  interstate  commerce.'"^'-' 

§  510.  Local  Movement  of  Cars  in  Yard  Between 
Completion  of  one  Interstate  Trip  and  Commencement 
of  Another.  A  car  loaded  with  freight,  being  moved  from 
one  state  to  another  continues  to  be  used  in  interstate 
commerce  until  it  is  delivered  by  a  common  carrier  to 
the  consignee  and  unloaded.'^''  Its  interstate  character 
then  ordinarily  ceases.  It  does  not  acquire  a  new  status 
as  an  interstate  commerce  car  until  it  is  again  assigned 
or  used  by  the  carrier  for  the  purpose  of  moving  traffic 
in  interstate  commerce.    A  movement  of  the  car,  there- 

69.  Bolch  V.  Chicago,  M.  &  St.  310,  31  Sup.  Ct.  279;  Louisville  & 
P.  R.  Co.,  90  Wash.  47,  155  Pac.  N.  R.  Co.  v.  Central  Stock  Yards 
422.  Co.,  212  U.   S.   132,   53  L.   Ed.   441, 

70.  Interstate  Commerce  Com-  29  Sup.  Ct.  246;  Covington  Stock- 
mission  V.  Atchison,  T.  &  S.  F.  Yards  Co.  v.  Keith,  139  U.  S.  128, 
R.  Co.,  234  U.  S.  294,  58  L.  Ed.  35  L.  Ed.  73,  11  Sup.  Ct.  4G1; 
1319,  34  Sup.  Ct.  814;  St.  Louis,  North  Pennsylvania  R.  Co.  v.  Com- 
I.  M.  &  S.  R.  Co.  V.  Edwards,  227  mercial  Nat.  Bank  of  Chicago,  123 
U.  S.  265,  57  L.  Ed.  506,  33  Sup.  U.  S.  727,  31  L.  Ed.  287,  8  Sup.  Ct. 
Ct.  262;  Chicago,  R.  I.  &  P.  R.  Co.  266;  Coe  v.  Errol,  116  U.  S.  517,  29 
V.  Hardwick  Farmers  Elevator  Co.,  L.  Ed.  715,  6  Sup.  Ct.  475;  Union 
226  l^  S.  426,  57  L.  Ed.  284,  33  Sup.  Stock-Yards  Co.  of  Omaha  v.  Unit- 
Ct.  174,  46  L.  R.  A.  (N.  S.)  203;  ed  States,  94  C.  C.  A.  626,  169 
United  States  v.  Union  Stock  Yard  Fed.  404. 

&  Transit  Co.  of  Chicago,  226  U.  "Had  the  injury  occurred  dur- 
S.  286,  57  L.  Ed.  226,  33  Sup.  Ct.  ing  the  movement  of  the  loaded 
83;  Southern  Ry.  Co.  v.  Reid,  222  car  prior  to  its  delivery  to  the 
U.  S.  424,  56  L.  Ed.  257,  32  Sup.  consignee,  there  could  be  no  ques- 
Ct.  140;  Southern  Pac.  Terminal  tion  but  that  plaintiff  v/ould  have 
Co.  V.  Interstate  Commerce  Com-  been  engaged  in  interstate  com- 
mission, 219  U.  S.  498,  55  L.  Ed.  merce.    The  shipment  of  the  brick 


§  511 


Train  and  Switching  Crews. 


887 


fore,  in  a  teniiiiial  yard  from  oiio  track  to  aiiotlicr  after 
llic  conclusion  of  its  interstate  status  during  tiie  lii'st 
flip  and  before  it  is  assigned  or  used  in  interstate  com- 
merce on  the  second  trip,  is  local  in  (;liaracter,  tliat  is, 
intrastate.  An  employe  injured  while  handling  the  car 
in  the  interim  between  the  two  trips  has  no  remedy 
under  the  Fedei'al  Km])loyers'  Lia])ility  Act.  For  ex- 
amj)le,  a  car,  after  an  interstate  cargo  had  been  dis- 
charged from  it,  was  taken  to  another  point  in  the  same 
state  where  it  was  left  to  await  another  order  for  its 
future  movement.  Such  an  order  was  given  two  or  three 
hours  after  an  accident  to  an  employe*.  The  courl  held 
that  the  plaintitl"  was  not  engaged  in  interstate  com- 
merce.^^ 

§  511.  Exceptions  to  Rule  that  Delivery  of  Car  at 
Destination  ends  Its  Interstate  Status.  But,  while  it  is 
Iruc,  as  .^tati'd  in  Hie  foi'cgoing  i»aragi'ai)h,  that  the  inter- 
state character  of  a  car  ordinarily  ceases  when  it  is 
delivered  at  the  destination  point  to  the  consignee  and 


from  Buffville.  Kan.,  to  the  Coen 
Building  Material  Company  at  a 
point  on  defendant's  line  in  Mis- 
souri constituted  interstate  com- 
merce; and  the  carrying  of  such 
loaded  car  by  defendant  from 
Dodson,  and  its  delivery  to  the 
consignee,  was  a  participation  by 
defendant  in  such  commerce." 
Trowbridge  v.  Kansas  City  &  W. 
B.  Ry.,  192  Mo.  App.  52,  179  S.  W. 
777,  an  action  under  the  Federal 
Act. 

71.  Moran  v.  Central  R.  of 
New  .lersey,  88  N.  .1.  L.  730,  96 
Atl.  1023,  in  which  the  trial  court 
said:  "I  think  the  interstate  char- 
acter of  that  car  ceased,  and  I  so 
decide,  when  the  function  that 
the  car  was  performing  in  the  in- 
terstate commerce  was  ended: 
that  is,  it  was  engaged  in  the  pur- 
pose of  carting  coal  from  Mauch 
Chunk    to    Newark    from    a    con- 


signor to  a  consignee.  When  it 
had  taken  the  last  vestige  of  coal 
off  of  the  car,  and  had  delivered 
it  to  the  consignee.  I  think  at 
that  point  its  character  as  an  inter- 
state commerce  car  ceased,  and 
that  it  did  not  acquire  a  new  char- 
acter as  an  interstate  commerce 
car  until  the  intention  on  the 
part  of  the  railroad  company  to 
use  that  car  had  been  in  some  way 
manifested,  either  by  act  or  by 
word."  The  decision  in  this  case 
was  affirmed  by  the  ITnited  States 
Supreme  Court  upon  the  author- 
ity of  Chicago,  B.  &  Q.  R.  Co.  v. 
Harrington,  241  U.  S.  177.  60  L. 
Ed.  941,  3G  Sup.  Ct.  517.  11  N.  C. 
C.  A.  992  and  Lehigh  Valley  R.  Co. 
V.  Barlow.  244  U.  S.  183.  61  L.  Ed. 
1070,  .37  Sup.  Ct.  515.  Moran  v. 
Central  R.  Co.  of  New  .lersey,  245 

U.  S.  629,  62  L.  Ed.  .  38  Sup. 

Ct.  62   (mem.  dec). 


888 


Injuries  to  Interstate  Employes.         [§  511 


unloaded,  nevertheless  where  it  is  intended  that  the 
car,  after  being  unloaded,  shall  be  returned  by  the  car- 
rier to  the  initial  point  in  another  state,  its  interstate 
status  continues  during  the  entire  trip.'^  For  example, 
an  employe  of  a  carrier  owning  a  line  about  nine  miles 
long  and  wholly  within  one  state,  was  assisting  in  the 
movement  of  an  empty  car  after  being  unloaded  of  its 
interstate  freight.  It  was  contended  that  the  em]:>loye 
was  not  tliereby  engaged  in  interstate  commerce  for  the 
reason  that  the  interstate  tri]!  of  the  car  had  been  com- 
pleted. But  in  rejecting  this  contention,  the  court 
said:''  "However,  in  the  case  now  before  us,  plaintitf's 
injury  occurred  after  the  car  had  been  unloaded  and 
while  he  was  switching  it  preparatory  to  taking  it 
back  to  Dodson  where  it  could  be  taken  possession  of 
by  the  Missouri  Pacific.  Was  the  movement  of  this 
empty  car  a  part  of  interstate  commerce!     We  are  of 


72.  Johnson  v.  Great  Northern 
R.  Co.,  102  C.  C.  A.  89,  178  Fed. 
643,  in  which  the  court  said: 
"The  car  in  question,  having  the 
defective  coupler,  was  a  car  he- 
longing  to  the  Wabash  Railroad 
Company,  and  known  and  desig- 
nated as  a  'foreign'  car.  It  had 
been  brought  into  Minneapolis, 
Minn.,  from  the  state  of  Wiscon- 
sin, by  the  Soo  Railroad,  delivered 
to  the  defendant  loaded  with  coal, 
and  by  the  defendant  delivered  to 
the  consignee.  It  had  been  un- 
loaded and  placed  upon  track  23 
for  the  purpose  of  being  redeliv- 
ered to  the  Soo  Railroad.  It  was 
delivered  to  that  railroad,  and 
afterwards  loaded  with  shingles 
in  T^Iinnesota,  and  taken  by  the 
Soo  road  thus  loaded  into  Wiscon- 
sin on  its  return  home.  That  it 
was  at  the  time  a  car  in  use  in 
interstate  commerce  is  clearly  sus- 
tained by  the  decision  of  the  Su- 
preme Court,  in  Johnson  v.  South- 
ern Pacific  Co.,  196  U.  S.  1,  25  Sup. 
Co.   158,  49  L.   Ed.  363,  in  which 


case  it  said:  'Whether  cars  are 
empty  or  loaded,  the  danger  to 
employes  is  practically  the  same, 
and  we  agree  with  the  observa- 
tion of  District  Judge  Shiras,  in 
Voelker  v.  Railway  Co.  (C.  C.)  116 
Fed.  867,  that  'it  cannot  be  true 
that  on  the  eastern  trip  the  pro- 
visions of  the  act  of  Congress 
would  be  binding  upon  the  com- 
pany, because  the  cars  were  load- 
ed, but  would  not  be  binding  upon 
the  return  trip,  because  the  cars 
are  empty.'  The  use  of  the  car 
in  question,  at  the  time  of  the  in- 
jury, was  a  use  in  interstate  com- 
merce within  the  rule  thus  an- 
nounced. It  had  been  brought 
loaded  from  the  state  of  Wiscon- 
sin into  the  state  of  Minnesota, 
and  though  empty  at  the  time  of 
the  injury  was  being  moved  by 
the  defendant  on  its  return  from 
whence   it   came.'' 

73.  Trowbridge  v.  Kansas  City 
&  W.  B.  Ry.,  192  Mo.  App.  52, 
179   S.  W.  777. 


<^  511]  Train  and  Switching  Crews.  889 

the  oi)iiii()ii  that  it  was,  under  the  rireiinistances  dis- 
closed hy  tliis  case.  In  the  lirst  place,  the  s(?rvic(i  under- 
taken by  the  defendant  when  it  ie(;eiv('d  the  headed  car 
from  the  Missouri  Paciiic  at  Dodson  was  not  fniislied 
until  it  had  transported  the  car  to  its  consignee  and  had 
returned  it  empty  to  Dodsoii  and  placed  it  again  at  llic 
disi)osal  of  the  Missouri  Pacific.  Under  these  (circum- 
stances the  particular  trip  of  this  car  from  BulTville, 
Kan.,  might  be  said  not  to  have  ended  until  it  was  re- 
turned emi)ty  to  Dodson,  since  it  was  not  the  purpose  of 
any  one  that  the  car,  when  unloaded,  should  remain  at 
the  point  of  delivery  to  the  consignee.  The  return  of  the 
car  to-  Dodson  was  a  necessary  part  of  the  movement  of 
any  cars  carrying  commerce  from  the  state  of  Kansas 
to  points  in  Missouri  on  defendant's  line.  To  enable 
the  railroad,  bringing  freight  from  Kansas  to  such 
points,  to  continue  that  commerce,  certainly  the  cars, 
after  they  have  been  received  and  emptied  of  their  goods, 
must  be  returned  to  that  road.  However,  there  is  more 
in  the  facts  of  this  case  than  simply  the  return  of  the 
car  to  Dodson,  and  we  need  not  go  so  far  as  to  hold 
that  its  mere  return  to  Dodson  was  a  part  of  its  in- 
coming tri]:),  and  therefore  a  part  of  the  interstate  com- 
merce of  that  trip.  In  this  case  the  Missouri  Pacific 
Road  had  directed  that  all  box  cars  returned  to  Dodson 
should  be  sent  to  its  distribution  point  at  Osawatomie, 
Kan.,  for  use  in  the  transportation  of  wheat.  The  car 
in  question  was  not  one  belonging  to  the  Missouri  Pacific, 
but  belonged  to  the  Delaware,  Lackawanna  &  Western 
Railway  (an  eastern  railroad).  AVlien  the  car  was  un- 
loaded at  the  Coen  Building  Material  Company's  plant 
and  started  by  defendant  to  Dodson,  the  defendant  was 
in  fact  participating  in  its  return  to  Kansas,  where  it 
was  to  again  enter  the  stream  of  incoming  cars  used  in 
further  transportation.  This  westward  movement  was 
merely  a  completion  of  the  circuit  it  was  making  in 
the  transportation  of  the  country  commerce.  On  its 
return  empty  from  the  switch  of  its  consignee,  its  pas- 
sage through  Dodson  to  the  west  was  accomplished  in 
the  same  way  it  went  through  Dodson  east  to  its  con- 
sie:nee.    Dodson  was  no  more  its  final  destination  in  tlie 


890  Injuries  to  Interstate  Employes.         [^  511 

one  case  than  in  the  other.  The  fact  that  the  defendant 
took  no  interest  in  where  the  car  was  going-  the  moment 
it  reached  Dodson,  nor  made  any  inquiry  in  regard 
thereto,  ought  not  to  make  any  difference  in  the  real 
nature  of  the  service  then  being  rendered.  It  was  then 
performing  a  service  in  the  interstate  commerce  of  the 
country.  And  in  view  of  the  fact  that  Dodson  was  so 
near  tiie  Kansas  line  with  only  one  small  station  be- 
tween it  and  that  state,  it  is  difficult  to  believe  that  de- 
fendant was  wholly  ignorant  of  the, fact  that  it  was  help- 
ing in  the  interstate  movement  of  such  cars,  even  though 
its  officers  were  careful  to  avoid  ascertaining  to  what 
particular  point  in  Kansas  the  cars  were  being  sent.  It 
is  not  the  intent  with  which  the  carrier  performs  its 
work  that  affects  the  nature  of  the  carriage;  it  is  the 
service  that  is  actually  rendered.  This  is  what  deter- 
mines whether  it  is  inter-  or  intra-state.  The  emi)ty  car, 
having  brought  its  load  from  Kansas  into  Missouri  had 
entered  upon  its  return  to  that  state,  there  to  be  again 
loaded.  It  was  an  instrumentality  of  interstate  com- 
merce. ' ' 

§  512.  Switching  Movement  of  Car  of  Lumber  to 
be  Used  in  Repairing  and  Building  Cars  Used  in  Inter- 
state Commerce.  Employes  of  a  railroad  company  en- 
gaged in  switching  a  car  loaded  with  lumber  from  a 
railroad  yard  into  machine  shops  where  the  lumber  was 
to  be  utilized  in  building  and  repairing  cars  which 
would  thereafter  be  used  in  moving  interstate  com- 
merce, are  not  thereby  engaged  in  interstate  commerce 
within  the  federal  act.'*  In  so  deciding,  the  court  said: 
"In  Minneapolis  &  St.  Louis  R.  R.  Co.  v.  Winters,  242 
U.  S.  353,  37  Sup.  Ct.  170,  61  L.  Ed.  358,  where  an  em- 
ploye was  injured  while  repairing  an  engine  which  had 
been  used  in  interstate  commerce,  before  the  injury,  and 
likewise  was  used  afterwards,  but  where  there  was  noth- 
ing to  show  that  it  was  permanently  or  specially  de- 
voted to  such  commerce,  or  assigned  to  it  at  the  time  of 

74.    Barnett  v.  Coal  &  Coke  Ry.       Co., W.    Va.    ,    94    S.   E. 

150. 


§  514 1  Train  and  SwiiciiiNG  Crews.  891 

the  iiijuiy,  tlic  court  held  the  injured  employo  was  not 
tluMi  (Mi.i;a^('d  in  an  act  of  interstate  commerce,  and  the 
case  did  not  conic  witliin  tlic  federal  Employers'  Lia- 
))ilitv  Act.  JJkewise,  in  Ciiica^o,  etc.,  R.  R.  Co.  v.  Har- 
lington,  241  U.  S.  177,  .%  Sup.  Ct.  517,  60  L.  Ed.  941, 
it  was  held"  that  an  enii)h)ye  of  an  interstate  carrier,  en- 
^a,i>,('d  in  removing  coal  from  storag'e  ti-acks  to  coal 
chutes,  was  not  engag-ed  in  interstate  commerce,  al- 
thoug-h  the  coal  had  been  previously  hiou.nht  from 
another  state  and  was  to  be  used  by  locomotives  in 
interstate  hauls.  Apropos  to  this  question,  see,  also 
Delaware,  etc.,  R.  R.  Co.  v.  Yurkonis,  238  U.  S.  439,  35 
Sup.  Ct.  902,  59  L.  Ed.  1397.  The  facts  presented  here 
are  much  strong-er  to  show  deceased  w^as  not  engaged 
in  interstate  commerce  at  the  time  of  his  injury  than 
they  were  in  the  case  just  cited.  Numerous  decisions 
by  ihe  courts  of  the  different  states  of  the  union,  to  the 
same  effect,  could,  be  cited  to  support  our  conclusion  on 
this  point,  but  we  deem  the  foregoing  from  the  highest 
authority  on  matters  relating  to  interstate  commerce 
sufficient." 

§  513.  Employes  Making  up  Train  of  Another  Com- 
pany for  an  Interstate  Run  Over  the  Latter 's  Track.  A 
switchman  employed  by  one  company  is  still  engaged 
in  interstate  commerce  while  assisting  in  moving  cars 
to  be  made  up  into  a  train  altliougli  the  cars  are  not 
owned  by  his  immediate  employer  and  were  to  be  moved 
over  the  tracks  of  another  company;  for  when  two  rail- 
roads use  a  common  switch  yard,  in  which  tho  employes 
of  one  carrier  forai  a  switching  crew  to  make  up  inter- 
state R-ains,  they  are  under  the  protection  of  the  federal 
act  even  though  they  are  not  moving  the  cars  of  their 
immediate  eni]iloyer.'^ 

§  514.  Illustrative  Cases  Showing  Employment  of 
Switching  Crews  in  Interstate  Commerce.  .AicTubers  of 
switching  crews  were  held  to  be  engaged   in   interstate 

75.    Ruppell   V.   New   York  Cent.       R.    Co..   171    N.   Y.   App.    DIv.   832, 

157  N.  Y.  Supp.  1095. 


892  Injuries  to  Interstate  Employes.         [§  514 

commerce  under  tlie  following  circumstances:  A  switcli- 
man  employed  in  moving  a  car  containing  interstate 
traffic  from  a  railroad  yard  to  repair  tracks  for  the  pur- 
pose of  repairing  some  of  the  appliances  thereon,  was 
within  the  federal  act.'*^  A  switchman,  at  the  time  of 
his  death,  employed  in  switching  cars  loaded  with 
merchandise  originating  in  one  state  and  destined  to  a 
point  in  another  state,  was  held  to  be  engaged  in  inter- 
state commerce."  A  brakeman  on  an  extra  freight  train 
while  "breaking  np"  his  train  at  a  terminal  and  assist- 
ing in  switching  a  car  loaded  with  lumber  consigned  to 
a  point  in  another  state,  was  engaged  in  interstate  com- 
merce.^® A  switchman  injured  while  riding  on  a  car  in 
transit  from  Indianapolis,  Ind.,  to  East  St.  Louis,  111., 
and  which  was  being  switched  at  the  time  to  the  ware- 
house at  the  point  of  deliverj^  to  be  unloaded,  was  en- 
gaged in  interstate  commerce. ^^  A  petition  in  an  action 
nnder  the  federal  act  declared  that  the  defendant  was  a 
common  carrier  by  railroad  engaged  in  interstate  com- 
merce and  had  a  freight  yard  in  a  town  in  Florida;  that 
the  decedent  was  an  employe  of  the  defendant  in  said  yard 
as  a  switchman;  that  he  was  required,  in  the  discharge 
of  his  duties,  in  the  movement  of  certain  cars,  to  un- 
couple the  car  attached  to  an  engine;  that  the  engine 
was  kept  at  the  said  point  to  switch  and  move  intra- 
state and  interstate  cars  as  the  business  required.  It 
was  held  hj  a  majority  of  the  court  that  this  declara- 
tion sufficiently  alleged  that,  at  the  time  of  the  injury, 
the  decedent  was  engaged  in  interstate  commerce,  but, 
under  the  later  ruling  of  the  federal  Supreme  Court  in 
the  Behrens  case,®°  no  doubt  the  decision  of  the  court 
in  this  case  was  too  broad.  For,  if,  at  the  time  of  the 
injury,  the  decedent  was  assisting  in  the  movement  of 
intrastate  cars,  only,  his  administrator  would  not  have 
a  remedy   under  the   federal    act.      An   engineer   on    a 

76.  Geer  v.   St.   Louis,   S.    F.   &  78.    Nashville,  C.  &  St.  L.  R.  Co. 

T.  Ry.  Co.,  Tex. ,  194  S.  v.  Banks,  156  Ky.  609,   161   S.  W. 

W.  939.  554. 

77.  Rich    V.    St.    Louis    &    S.    F.  79.    Hall  v.  Vandalia  R.  Co.,  169 
R.   Co.,   166   Mo.   App.   379,   148    S.  111.  App.  12. 

W.  1011.  80.    Section  503,  supra. 


<^  514]  Train  and  kSwitching  Crews.  893 

switch  engine  engaged  in  delivering  ears  containing 
coal,  which  was  to  be  used  partly  by  locomotive  engines 
of  the  railroad  company  employed  in  liauling  interstate 
trains,  was  held  to  be  engaged  in  intci'state  commerce 
by  a  state  court ;''^  but,  on  writ  of  error  to  the  federal 
Supreme  Couil,  this  decision  was  reversed  on  the 
ground  that  the  movement  was  intrastate  and  not  inter- 
state in  character.*^ 

81.    Barlow  v.  Lehigh  Valley  R.  82.    Lehigh  Valley  R.  Co.  v.  Bar- 

Co.,   158  N.   Y.  App.   Div.   768,   143       low,  244  U.  S.  183,  61  L.  Ed.  1070, 
N.  Y.  Supp.  1053.  37  Sup.  Ct.  515. 


Sec. 

520. 

Sec. 

521. 

Sec. 

522. 

Sec. 

523. 

Sec. 

524. 

Sec. 

525. 

CHAPTER  XXVI 

Interstate    Stattts    of    Miscellaneous    Employes. 

Sec.  515     Employes  Procuring  Supplies  and     Materials  to  be  Used  on 

Interstate  Trains. 
Sec.  516.     Supplying  and  Moving  Coal  for  Use  of  Engines  Pulling  In- 
terstate Trains. 
Sec.  517.     Status  of  Employes  Dumping  Coal  from  Chutes  into  Tenders 

of  Interstate  Engines. 
Sec.  518.     Loading  and  I^nloading  Freight  from  Interstate  Trains  Con- 
stitutes Work  in  Interstate  Commerce. 
Sec.  519.     Status  of  Watchmen,  Detectives  and  other  Employes  doing 
Police  Duties. 
Yard  Clerks  Engaged   in   Interstate  Commerce,   When. 
Servants    of    Railroad    Companies    Handling    United    States 

Mail  in  Connection  with  Interstate  Trains. 
Agents  of  Express  Companies. 
Interstate   Status  of  Express  Messengers   Employed   Jointly 

by  Railroad  and  Express  Companies. 
Pullman  Employes. 
Miscellaneous  Employes. 

§  515.  Employes  Procuring  Supplies  and  Materials 
to  be  Used  on  Interstate  Trains.  Employes  of  a  railroad 
company  engaged  in  placing  upon,  or  procuring  for, 
interstate  trains  necessary  supplies  and  materials  are, 
ordinarily,  engaged  in  interstate  commerce  within  tlie 
federal  act.  For  example,  a  porter  on  a  passenger  train, 
wlien  injured,  was  lifting  cakes  of  ice  for  a  water  cooler 
in  a  coach  of  a  train.  The  passengers  on  the  train,  with 
the  exception  of  two  travelling  from  one  state  to  an- 
other, were  making  intrastate  trips.  It  was  held,  and 
properly  so,  that  the  porter  was  employed  in  interstate 
commerce.^    A  brakeman  injured  by  falling  into  a  cinder 

1.    Freeman  v.  Powell, Tex.  necessity,    not   only   of   the   local, 

Civ.    App.    ,    144    S.    W.    10.33,  but  of  the  interstate  passengers; 

wherein    the   court   said:    "Appel-  and  we,  therefore,  think  that  his 

lee's    employment    had    direct    re-  employment  comes  well  within  the 

lation  to  the  commerce,  towit,  the  authorities    on    the    subject    that 

two    interstate    passengers    which  we  have  been  able  to  find."     Cit- 

the  train  in  question  transported.  ing  Zikos  v.  Oregon  R.  &  Nav.  Co., 

The    service     performed     directly  179  Fed.  893;  Colasurdo  v.  Central 

contributed    to    the    comfort    and  R.  R.  of  New  Jersey  180  Fed.  832; 

(894) 


<^  515]  Miscellaneous  Employes.  895 

pit  while  he  was  walking  over  a  railroad  yard  looking 
for  a  tool  boy  to  get  a  tin  cup  for  the  caboose  of  an 
interstate  train  on  wITk-Ii  he  was  a))()ut  to  leave  a  ter- 
minal, was  engaged  in  interstate  eunnnerce."  An  em- 
ploye engaged  in  dumping  coal  from  a  coal  chute  into 
the  tender  of  an  engine  which  was  then  being  prepared 
for  the  purpose  of  taking  a  passenger  train  from  Mis- 
souri into  Kansas,  was  engaged  in  interstate  commerce/' 
A  railroad  employe  injured  while  loading  tobacco  into  a 
car  which  was  to  be  transported  into  another  state,  was 
held  to  have  a  remedy  under  the  federal  act/  A  brake- 
man  carrying  ice  in  a  railroad  yard  to  cool  a  hot  box 
of  a  car  in  an  interstate  train,  was  held  to  be  engaged 
in  federal  commerce.'  An  employe  of  a  railroad  com- 
pany engaged  in  i)utting  a  barrel  of  oil  on  an  interstate 
train,  was  within  the  federal  act.''  But  a  brakeman  go- 
ing from  his  caboose  to  the  yard  office  to  present  a  re- 
quisition for  sup])lies  needed  on  the  caboose  whenever 
it  should  be  called  into  service  for  the  next  trip,  was 
not  engaged  in  interstate  conunerce  when  it  did  not  ap- 
pear that  the  train  on  its  next  trip  would  carry  inter- 
state traffic.'^  "He  had  completed  his  previous  run," 
said  the  court  in  the  last  case  cited,  "some  hours  before, 
and  anticipating  that  he  would  be  again  called  into 
service  soon  after  noon  on  the  15th,  but  whether  to 
handle  interstate  or  purely  local  freight  he  had  no  means 
of  knowing,  as  he  had  not  been  called  for  duty;  his 
train  had  not  been  made  up,  and  his  caboose  was  on  a 
siding  in  the  yard  awaiting  assignment.  The  action 
was  brought  under  the  Federal  Employers'  Liability 
Act  (35  Stat,  at  L.  65),  and  plaintiff  assumed  the  bur- 

Troxell   v.   Delaware,   L.   &  W.   R.  5.    Illinois  Cent.  R.  Co.  v.  Nel- 

Co.,  180  Fed.  871.  son,  122  C.  C.  A.  258.  203  Fed.  956. 

2.    Baltimore    &    O.     R.    Co.    v.  e.    Tonsellito  v.  New  York  Cent. 

Whitacre,    124    Md.    411,    92    Atl.  ^  ^    j^j^gj.  j^    ^o..  87  N.  J.  L.  651. 

lOGO,  aff'd^in  242  U.  S.  169.  61   L.  g^  ^^j    g^^    ^^,^  .^  244  U.  S.  360. 

Ed.  228,  37  Sup.  Ct.  33.  ^^    ^    ^^     ^^^^^    ^^    g^p     ^^     ^^0, 


3.  Arnibruster  v.  Chicago,  R.  I 
&  P.  R.  Co.,  166  Iowa  155,  147  N. 
W.  337. 

4.  Illinois  Cent.  R.  Co.  v.  Por-       Co.,  52  Mont.  578,  160  Pac.  654 
ter,  125  C.  C.  A.  55,  207  Fed.  311. 


14  N.  C.  C.  A.  1072. 

7.    McBain  v.  Northern  Pac.   R. 


896  Injuries  to  Interstate  Employes.         [§  515 

den  of  pleading  and  proving-  that  at  the  time  he.  was  in- 
jured he  was  engaged  in  interstate  commerce.     The  al- 
legation of  his  complaint  is  sufficient,  but  does  his.  proof 
sustain  it?    The  record  presents  a  federal  question,  and 
the  decisions  of  the  United  States  Supreme  Court  upon 
it  are  conclusive  upon  this  court.    Under  a  state  of  facts 
substantially   identical   with   the  facts  before   us,   that 
court  held  that  it  is  immaterial  that  the  injured  party 
may  have  been  engaged  in  interstate  commerce  immedi- 
ately before  he  was  injured,  or  that  immediately  after 
completing  his  then  present  task  he  would  again  en- 
gage in  interstate  commerce,  and  said:  'The  true  test 
is  the  nature  of  the  work  being  done  at  the  time  of  the 
injurv.'     Illinois  Cent.  R.  R.  Co.  v.  Behrens,  233  U.  S. 
473,  34  Sup.  Ct.  646,  58  L.  Ed.  1051,  Ann.  Cas.  1914C, 
163.     Applying  that   test  to   the   facts  presented  here, 
and  it  is  apparent  at  once  that  plaintiff  has  failed  to 
make  out  his  case  under  the  federal  statute.    The  char- 
acter of  the  supplies  he  sought  furnishes  no  index  to 
his  employment.  The  fuses,  torpedoes,  and  waste  were 
necessary  supplies  for  his  caboose,  whether  it  would  be 
employed  in  interstate  or  intrastate  commerce,  and  at 
the  time  of  his  injury  it  was  impossible  to  determine 
the  character  of  his  next  assignment,  for  he  had  not  then 
been  called  to  duty;  the  train  to  which  his  caboose  would 
be  attached  had  not  then  been  made  up  and  the  caboose 
had  not  been  assigned.    Under  the  interpretation  placed 
upon  this  statute  by  the  Supreme  Court  of  the  United 
States,  it  is  of  no  consequence  that  the  work  performed 
by  plaintiff  had  to  do  with  interstate  commerce  to   a 
much  greater  extent  than  with  purely  local  shipments. 
The  Congress  doubtless  had  authority,  under  the  com- 
merce clause  of  the  constitution,  to  impose  upon  a  car- 
rier  engaged   in   both  interstate    and   intrastate   traffic 
liability  for  an  injury  sustained  by  its  employe  in  the 
course  of  its  general  work,  whether  the  'particular  serv- 
ice being  performed  at  the  time  of  the  injury,  isolatedly 
considered,   was   in    interstate   or   intrastate    commerce 
(Behrens  Case,  above) ;  but  Congress  did  not  see  fit  to 
exercise  its  authority  to  that  extent.     The  act  in  ques- 
tion provides:    'that  every  common  carrier  by  railroad 


§  51 G]  Miscellaneous  Employes.  897 

while  engaging  in  conmierce  between  any  of  the  several 
states  *  *  *  sliall  be  liable  in  damages  to  any  per- 
son suffering  injury  while  he  is  employed  by  such  car- 
rier in  such  commerce,'  etc.  In  further  consideration 
of  this  feature  of  tiie  statute  the  court  in  the  case  above 
said:  Giving  to  the  words  'suffering  injury  while  ho  is 
em])loyed  by  such  carrier  in  such  commerce'  their  natur- 
al meaning,  as  we  think  must  be  done,  it  is  clear  tiiat 
Congress  intended  to  confine  its  action  to  injuries  oc- 
curring when  the  particular  service  in  whicli  the  em- 
ploye is  engaged  is  a  part  of  interstate  commerce.'  At 
the  time  he  was  injured,  plaintiff  was  not  engaged  in 
interstate  commerce  within  the  meaning  of  the  federal 
Employers'  Liability  Act  as  construed  by  the  highest 
court  of  the  land."  A  brakeman  engaged  in  filling  the 
lami)s  and  lanterns  and  sweeping  the  floor  of  the  caboose 
in  preparation  for  an  interstate  run,  is  engaged  in  inter- 
state commerce.*  The  work  of  an  employe  in  supplying 
the  engines  running  from  points  in  Michigan  to  points 
in  Ohio  and  vice  versa,  with  sand  and  oil,  constitutes 
employment  in  interstate  commerce.^  A  member  of  a 
switching  crew,  at  the  time  he  received  an  injury,  was 
on  his  way  with  the  engine  to  a  water  tank  to  get  water. 
Just  before  the  injury  he  had  been  engaged  in  switching 
cars  and  making  up  trains  containing  interstate  ship- 
ments. It  was  necessary  to  obtain  water  for  the  engine 
so  as  to  be  able  to  return  to  the  work  of  switching  both 
interstate  and  intrastate  cars.  The  movement  of  the 
switch  engine  to  i)rocure  water  for  the  handling  of  inter- 
state traffic  thereafter  governed  the  status  of  plaintiff's 
employment,  and  he  was  held  to  have  a  remedy  under  the 
Federal  Act.^'' 

§  516.  Supplying  and  Moving  Coal  for  Use  of  En- 
gines Pulling  Interstate  Trains.  The  status  of  employes 
with  reference  to  interstate  or  intrastate  employment 
in   assisting  in  supplying  or  in   moving  coal   between 

8.  Davis  V.  Chicago,  R.  I.  &  P.      Jlicli.   ,    166    N.    W.    G67. 

R.  Co.,   134   Minn.   49,   158   N.   W.  9a.     Macon,   D.  &  S.  R.   Co.  v. 

911-  Robinson,  Ga.  App.  .  91 

9.  Guy  V.  Cincinnati,  N.  R.  Co.,  S.  E.  492. 

1    Control    Carrleis    57 


898 


In.tubies  to  Interstate  Employes.         [§  51G 


points  in  one  state  for  the  use  of  engines  pulling  inter- 
state traffic  depends  upon  whether,  at  the  time  of  an 
injury,  the  work  has  such  a  direct  or  close  connection 
with  interstate  commerce  as  to  constitute  a  part  of  it. 
The  law  is  well  settled  that  if  the  work  being  done  at 
the  time  of  an  injury  is  not  a  part  of  interstate  com- 
merce, the  remedy  is  controlled  by  the  state  statute; 
but  the  uncertainty  under  our  dual  form  of  government 
lies  in  determining  at  what  stage  or  point  of  time,  coal, 
while  being  conveyed  from  the  mine  to  the  tender  of  an 
interstate  engine,  passes  from  the  control  of  the  state 
law  to  the  federal  so  that  the  rights  of  an  employe, 
when  injured,  or  his  administrator  in  case  of  death, 
may  be  ascertained. '°  The  national  Supreme  Court  has 
answered  the  question  in  a  negative  way.     It  held,  for 


10.  Harrington  v.  Chicago  B.  & 
Q.  R.  Co.,  (Mo.  App.),  180  S.  W. 
443,  in  which  Judge  Trimble,  in 
a  decision  subsequently  approved 
by  the  Supreme  Court  of  the  Unit- 
ed States,  said:  "As  said  in  the 
major  opinion,  it  is  not  the  in- 
direct effect  upon  interstate  com- 
merce Uiat  determines  the  ques- 
tion, else  there  would  be  little 
use  of  limiting  the  federal  act  to 
those  cases  wherein  the  work  was 
directly  connected  with  interstate 
commerce.  For,  if  the  putting  of 
coal  into  the  storehouse  be  deem- 
ed interstate  commerce,  where  is 
the  line  of  demarcation  to  be 
placed?  And  when  does  the  work 
change  from  its  ordinary  character 
into  that  of  interstate  commerce? 
When  does  the  coal  become  an  'in- 
strumentality' of  interstate  com- 
merce? At  the  mines?  On  the 
way  therefrom?  In  the  store- 
house? Or  does  that  portion  only 
of  such  coal  become  an  instrumen- 
tality of  interstate  commerce 
when  it  is  separated,  or  is  being 
separated,  from  the  general  store 
for  the  purpose  of  devoting  it  to 


that  commerce?  It  would  seem 
that  the  coal  would  not  become  an 
instrumentality  of  such  commerce 
until  that  time,  and  therefore  the 
general  work  of  putting  coal  into 
defendant's  general  storehouse 
should  not  be  considered  as  an 
engagement  in  interstate  com- 
merce. This  does  not  require 
that  before  anything  can  be  con- 
sidered an  instrument  of  inter- 
state commerce  it  must  be  used  ex- 
clusively in  the  prosecution  there- 
of. The  coal  in  this  case  is  some- 
thing that  caii  be  separated  there- 
from. It  is  not  like  a  bridge  or 
the  track  in  the  roadbed,  or  a 
roundhouse  used  in  the  repair  of 
both  interstate  and  intrastate  en- 
gines. For  these  do  not  lose  their 
status  as  interstate  instrumental- 
ities when  used  in  intrastate  busi- 
ness. Hence  they  cannot  be  sep- 
arated therefrom  and  must  there- 
fore be  regarded  as  indivisible 
parts  thereof.  But,  even  as  to 
these,  they  are  not  considered  as 
instruments  of  interstate  com- 
merce until  they  have  been  de- 
voted  thereto." 


<§,    5U>]  MiSCKLKVNEOUS  EMPLOYES.  899 

example,  ilial  an  employe  engaged  in  mining  coal  in  a 
colliery  owned  by  a  railroad  company,  which  was  to 
be  used  on  its  locomotive  engines  in  pulling  interstate 
trains,  was  not  woiking  in  interstate  commerce  within 
the  meaning  of  the  Act,  for  the  reason  that  the  fact  the 
coal  w^as  to  be  used  in  the  future  in  the  movement  of 
interstate  traffic  after  it  was  mined,  did  not  make  the 
actual  work  of  mining  the  coal  a  part  of  interstate 
commerce. ^^  And  it  also  held  that  a  switchman  was  not 
employed  in  interstate  commerce  while  he  was  engaged 
in  transferring  a  load  of  coal  from  storage  tracks  into 
a  coal  chute  in  the  same  yard  where  the  coal,  when  thus 
placed,  would  thereafter  be  used  by  locomotive  en- 
gines pulling  interstate  trains,  because  the  work  of  tak- 
ing the  coal  to  the  chute  did  not  have  such  a  close  or 
direct  relation  to  interstate  commerce  as  to  be,  in  a 
practical  sense,  a  part  of  it."  Similarly,  the  Kansas 
supreme  court  properly  held  that  a  fireman  on  an  en- 
gine, injured  while  assisting  in  the  movement  of  cars 
of  coal  belonging  to  his  employer,  from  one  point  to 
another  in  the  same  state,  where  the  coal  was  to  be 
used  later  in  firing  engines  pulling  interstate  trains, 
was  not  under  the  protection  of  the  federal  act."  An 
employe  w^orking  in  a  coal  chute  assisting  in  elevating 
coal,  some  of  which  would  be  used  in  filling  the  tenders 

11.  Delaware,  L.  &  W.  R.  Co.  v.  overrules  such  cases  as  Barker  v. 
YuTkonis,  238  U.  S.  439,  59  L.  Ed.  Kansas  City,  M.  &  0.  R.  Co.,  88 
1397,    35    Sup.    Ct.    902.  Kan.  767,  129  Pac.  1151;  Barlow  v. 

12.  Chicago,  B.  &  Q.  R.  Co.  v.  Lehigh  Valley  R.  Co.,  214  N.  Y. 
Harrington,  241  U.  S.  177,  60  L.  116,  107  N.  E.  814;  Kamboris  v. 
Ed.  941,  36  Sup.  Ct.  517,  11  N.  C.  Oregon-Washington  R.  &  Nav.  Co., 
C.  A.  992,  in  which  the  court  said:  75  Ore.  358,  146  Pac.  1097;  Mont- 
"Manifestly,  there  was  no  such  gomery  v.  Southern  Pac.  Co.,  64 
close  or  direct  relation  to  inter-  qj.^  ggy  ^y  l  r.  a.  (N.  S.)  1."^, 
state  transportation  in  the  taking  jg^  p^^'  5^,^.  Horton  v.  Oregon- 
of  the  coal  to  the  coal  chutes.  This 
was  nothing  more  than  the  put- 
ting of  the  coal  supply  in  a  con- 
venient place  from  which  it  could 
be  taken  as  required  for  use."  13-  Barker  v.  Kansas  City.  M.  & 
The  decision  of  the  Supreme  Court  O.  R.  Co.,  94  Kan.  176,  146  Pac. 
in  the  Harrington  case,  in  effect,  358. 


Washington  R.  &  Nav.  Co.,  72 
Wash.  503,  47  L.  R.  A.  (N.  S.)  S, 
130  Pac.  897. 


900  Injuries  to  Interstate  Employes.         [^  516 

of  interstate  engines,  was  not  engaged  in  interstate  com- 
merce.^* 

§  517.  Status  of  Employes  Dumping  Coal  from 
Chutes  into  Tenders  of  Interstate  Engines.  But  after 
the  coal  is  placed  in  the  chute  for  the  use  of  interstate 
engines,  it  seems  that  the  work  thereafter  of  filling  the 
tenders  of  interstate  engines  with  coal  therefrom  posses- 
ses such  a  close  and  immediate  connection  with  inter- 
state commerce  that  the  rights  of  an  employe  injured  in 
the  course  of  such  a  duty  would  be  governed  by  the  fed- 
eral and  not  the  state  law.  Thus,  a  hostler  engaged  in 
dumping  coal  from  the  chutes  into  the  tender  of  an  en- 
gine which  was  then  being  prepared  for  the  purpose  of 
taking  a  passenger  train  from  a  point  in  Missouri  to  a 
point  in  Kansas,  was  found  to  be,  under  those  circum- 
stances, engaged  in  interstate  commerce.''  "We  reach 
the  conclusion,"  said  the  court  in  the  last  case  cited, 
"that  the  deceased  was  employed  in  interstate  com- 
merce at  the  time  of  receiving  the  injury.  True,  the 
engine  had  not  been  attached  to  the  train  at  the  time, 
but  it  was  being  prepared  for  that  purpose,  and  it  was 
attached  shortly  thereafter  and  actually  hauled  freight 
into  another  state.  It  is  suggested  that  the  engine 
whose  tender  was  being  coaled  was  not  shown  to  have 
been  assigned  to  haul  the  particular  train,  and  that  the 
work  may  have  been  done  generally,  but  we  think  any 
such  inference  was  obviated  by  proof  of  the  actual  use 
made  of  it  and  the  absence  of  evidence  that  engines 
were  being  so  prepared  generally  without  reference  to 
when  they  were  to  be  employed.""'    The  supreme  court 

14.  Zavitovsky  v.  Chicago,  M.  &  on  writ  of  error  to  the  national 
St.  P.  R.  Co.,  161  WMs.  461,  154  N.  Supreme  Court  on  the  ground  that 
W.  974.  the  decedent  was,  under  the  con- 

15.  Armbruster  v.  Chicago,  R.  I.  tract  with  the  railroad  company, 
&  P.  R.  Co.,  166  Iowa  155,  147  N.  an  independent  contractor  and  not 
W.  337.  See  Chicago,  R.  I.  &  P.  an  employe.— Chicago,  R.  I.  &  P. 
R.  Co.  V.  Bond,  47  Okla.  161,  148  R.  Co.  v.  Bond,  240  U.  S.  449,  60 
Pac.  103,  in  which  the  court  held  L.  Ed.  735,  36  Sup.  Ct.  403,  II 
that  a  person   dumping  coal  into  N.  C.  C.  A.  342. 

interstate    engines    from    chutes,  16.    See  North   Carolina  R.   Co. 

was    engaged    in    interstate    com-       v.  Zachary,  232  U.  S.  248,  58  L.  Ed. 
merce,  but  this  case  was  reversed       591,  34  Sup.  Ct.  305,  9  N.  C.  C.  A. 


'^  519]  Miscellaneous  Employes.  901 

of  Alabama  likewise  held  that  an  employe  working  in 
and  about  a  coal  chute  and  while  preparing  the  tipple 
for  the  purpose  of  filling  the  tender  of  an  engine  pull- 
ing an  interstate  train,  was  engaged  in  interstate  com- 
merce." A  servant  of  a  railroad  company  who,  immedi- 
ately before  he  was  injured,  had  been  assisting  in  coaling 
a  switch  engine  which  handled  interstate  and  intrastate 
cars  indiscriminately  in  a  railroad  yard,  was  not  em- 
ployed in  interstate  commerce.^** 

§  518.  Loading  and  Unloading  Freight  from  Inter- 
state Trains  Constitutes  Work  in  Interstate  Commerce. 
The  federal  act  governs  the  liability  of  common  carriers 
for  injuries  to  employes  while  engaged  in  loading  or  un- 
loading freight  from  interstate  trains.  Thus,  a  brake- 
man  who  was  shown  to  have  been  unloading  from  a  car 
in  a  train,  a  barrel  of  oil  shipped  from  another  state 
when  he  was  injured,  sufficiently  sustained  the  burden 
of  proving  that  he  was  engaged  in  interstate  com- 
merce.^^  A  truckman  in  the  employ  of  a  railroad  com- 
pany was  killed  while  loading  into  a  box  car  freight 
consigned  to  a  point  in  another  state.  His  administrator 
was  properly  held  to  have  brought  a  suit  for  his  death 
under  the  federal  act.^°  An  employe  struck  by  a  pas- 
senger train  carrying  interstate,  passengers,  baggage 
and  mail,  was  within  the  federal  act  when  injured  while 
on  his  way  to  unload  mail  from  the  train. ^^ 

§  519.  Status  of  Watchmen.  Detectives  and  other 
Employes  doing  Police  Duties.     Employes  of  common 

109,  Ann.  Cas.  1914C  159,  in  which  preparation  for  an  interstate  run. 

it    was    held    that    a    fireman    in-  17.    Southern   R.   Co.   v.   Peters, 

specting,    oiling,    firing    and    pre-  194  Ala.  94,  69  So.  611. 

paring    his    engine   for    an    inter-  ^g.    Giovio   v.    New    York   Cent 

state  trip,  was,  while  so  engaged,  j^    ^.^^   j^g   j^    ^    j^^^    ^j^    230, 

within   the  protection   of  the   na-  jgg  ^^    ^    Sudd    10''6 

tional  statute;  Chicago  &  N.  W.  R.  ^^    '^^            ^     ^     ^^^^^^  ^ 

Co.  V.  Bower,  241  U.  S.  470,  60  L. 

Ed.   1107,  36  Sup.  Ct.  624,  an  ac-  ^^^y«-    1^7    Ala.    367,    72    So.    641 

tion    under   the   Federal   Employ-  20.    Illinois  Cent.  R.  Co.  v.  Por- 

ers'  Liability  Act,  in  which  it  ap-  ter,  125  C.  C.  A.  55.  207  Fed.  311. 

peared   that  an   engineer  was   in-  21.    Lynch  v.  Boston  &  M.  R.  R., 

Jnred   while   oiling  his   engine   In  227  Mass.  123,  IIG  N.  E.  401. 


902  Injuries  to  Interstate  Employes.         [^  519 

carriers  by  railroad  porformiiig  sncli  duties  as  usually 
fall   upon "  watchmen,   detectives   and   police   officers  in 
protecting  and  guarding  the  property  of  the  carrier,  are 
not  under  the  purview  of  the  federal  act  unless  they 
are   engaged   in   interstate   transportation    or   in   work 
directly   connected   with  or  related  to   interstate  com- 
merce.'   For  example,  an  employe  of  the  company  as- 
sisting a  posse  in  searching  for  highwaymen  who  had 
robbed  a  train  containing  interstate  commerce,  was  not 
engaged  in  interstate  commerce."    A  detective  employed 
by  a  railroad  company  in  its  yards  and  killed  by  a  train 
was  not  employed  in  interstate  commerce  m  the  absence 
of  any  evidence  that  he  was  then  engaged  in  inspect- 
ing  cars  containing   interstate    traffic    or   aiding   some 
other    work    directly    connected    with    interstate    com- 
merce."    On  the  otiier  hand,  a  watchman  who  was  in 
charge  of  a  dead  engine  in  a  train  running  from  a  point 
in  Afabama  to  a  point  in  Georgia  and  who  was  injured 
in  transit,  was  held  to  have  a  remedy  under  the  federal 
act."    A  special  officer  employed  by  a  common  carrier 
by  railroad  who  was  injured  just  after  he  had  removed 
trespassers  from  an  interstate  passenger  train,  was  held 
to  be  employed  in  interstate  commerce.''     A  watchman 

22.    Alabama  Great  Southern  R.  his   further   act   in   attempting  to 

Co    V.  Bonner,  Ala.  ,  75  drive  the  men  away  was  one  not 

gp'  ggg  '  connected  with  the  first  duty,  and 

23     Chicago,   R.   I-   &  P-   R-   Co.  was  of  a  local  nature  only,  it  ap- 

V.    Industrial '  Board    of    Illinois,  pears  that  the  act  was  a  continu- 

273   111    528,  L.   R.   A.   1916F   540,  ous  one  without  a  break  or  stop. 

113  N    E    80  '^^^    watchman    caused    the    men 

24.    Atlantic  Coast  Line  R.  Co.  who    sought    to    trespass    on    the 

V    Jones,  9  Ala.  App.  499,   63   So.  interstate    train    to    leave    it    and 

ggg  '  then,  in  the  words  of  the  finding 

25     Smith     v.     Industrial     Ace.  made    by    the    Commissioner,    he 

Commission  of  California,  26  Cal.  was  following  them  to  drive  them 

App    560    147   Pac.   600,  in   which  oif   the  company's  property   when 

the    court     said:     "Touching     the  he  stumbled  and  his  revolver  fell 

claim  of  petitioner  that,  whatever  from    the    holster    and    was    dis- 

character   his   act   may   have   had  charged.'     It  would  be  to  mark  a 

as  being  connected  with  the  oper-  very  fine  line  of  distinction  to  say 

ation  of  an  interstate  train  up  to  that  from  the  moment  the  watch- 

the   moment   that   he   had   driven  man    and    the    intruders    stepped 

the   intruders  therefrom   and   had  from  the  interstate  train  the  acts 

himself   alighted    on    the   ground,  of  the  former  changed  from  being 


'^  520]  Miscellaneous  Employes.  903 

employed  at  a  point  wlieie  a  public  street  crossed  the 
tracks  of  an  interstate  railroad  and  whose  duties  con- 
sisted in  closing  the  gates  upon  the  approach  of  trains 
so  as  to  prevent  access  to  the  track  by  vehicles,  was 
held  to  he  engaged  in  interstate  commerce  as  it  ap- 
peared that  the  tracks  were  used  indiscriminately  in 
both  interstate  and  intrastate  commerce.-"  An  engine 
liostler  who  was  employed  at  night  in  watching,  coaling, 
watering  and  keeping  up  steam  in  a  switch  engine  in 
a  railroad  yard,  which  was  used  during  the  day  in  switch- 
ing interstate  and  intrastate  cars,  was  not,  while  so  en- 
gaged, employed  in  interstate  commerce  for  the  reason 
that  the  engine  was  not  used  in  any  kind  of  commerce 
during  the  whole  time  that  the  employe  was  on  duty.^^ 
A  crossing  flagman  is  engaged  in  interstate  commerce 
while  signalling  interstate  trains.-^ 

§  520.  Yard  Clerks  Engaged  in  Interstate  Com- 
merce, When.  Yard  clerks  in  the  employ  of  common 
carriers  by  railroad  while  examining  and  recording  the 
numbers  and  initials  of  cars,  inspecting  and  making  a 
record  of  the  seals  on  car  doors,  checking  the  cars  with 
the  conductors '  lists  or  putting  labels  on  the  cars  to  guide 
switching  crews  are  employed  in  interstate  commerce  if 
trains  upon  which  they  are  so  working  have  any  cars 
containing  interstate  commerce.-'-'  In  the  case  of  St. 
Louis,  S.  F.  &  T.  R.  Co.  v.  Scale,  cited  in  the  notes,  the 

in  aid  of  interstate  commerce  and  28.    "West  v.  Atlantic  Coast  Line 

his  further  motions  in  pursuit  of  R.   R.,  N.  C.  .,   93   S.   E. 

these  same  intruders  became  col-  479. 

ored   with   conditions  of  a  purely  29.    Pecos    &    N.    T.    R.   Co.    v. 

local     employment.       The    federal  Rosenbloom,  240  U.   S.   439,  60   L. 

courts    have    not    indulged    such  Ed.  730,  36  Sup.  Ct.  390;  St.  Louis, 

close  distinctions  in  applying  the  S.  F.  &  T.  R.  Co.  v.  Seale,  229  U. 

statutes."'  S.  156,  57  L.  Ed.  1129,  33  Sup.  Ct. 

26.  Southern    Pac.    Co.    v.    In-  651,    Ann.    Cas.    1914C,    156,    rev'g 

dustrial  Ace.  Commission  of  Cal-  Tex.  Civ.  App.  ,  3  N.  C. 

ifornia,  174  Cal.  8,  161  Pac.  1139.  C.  A.   800,   148   S.  W.   1099,  Pitts- 

27.  Hardy  v.  Atlanta  &  W.   P.  burgh,   C,   C.   &   St.   L.   R.   Co.  v. 

R.  Co.,  Ga.  App.  ,  93   S.  Farmers'  Trust  &  Savings  Co..  183 

E.  18.  Ind.  287,  108  N.  E.  108. 


9()4  Injuries  to  Interstate  Employes.         [^  520 

decedent  was  a  yard  clerk,  and,  at  the  time  of  his  in- 
jury and  death,  was  on  his  way  through  a  railroad  yard 
to  one  of  the  tracks  to  meet  an  incoming  freight  train 
which  had  arrived  from  another  state.  He  was  going  to 
the  train  to  take  the  numbers  of  the  cars  and  other- 
wise perform  his  duties  in  respect  to  them.  While  so 
engaged  he  was  struck  by  a  switch  engine,  which,  it  was 
claimed,  was  negligently  operated  by  other  employes. 
The  Supreme  Court  of  the  United  States  held  that  the 
decedent  was  engaged  in  interstate  commerce  at  the 
time  of  his  death,  Mr.  Justice  Lamar,  dissenting.  Dis- 
cussing the  legal  effects  of  the  facts  mentioned,  the 
court  said:  "In  our  opinion  the  evidence  does  not  admit 
of  any  other  view  than  that  the  case  made  by  it  was 
within  the  federal  statute.  The  train  from  Oklahoma 
was  not  only  an  interstate  but  was  engaged  in  the  move- 
ment of  interstate  freight;  and  the  duty  which  the  de- 
ceased was  performing  was  connected  with  that  move- 
ment, not  indirectly  or  remotely,  but  directly  and  im- 
mediately. The  interstate  transportation  was  not  ended 
merely  because  that  yard  was  a  terminal  for  that  train, 
nor  even  if  the  cars  were  not  going  to  points  beyond. 
Whether  they  were  going  further  or  were  to  stop  at  that 
station,  it  still  was  necessary  that  the  train  be  broken 
up  and  the  cars  taken  to  the  appropriate  tracks  for 
making  up  outgoing  trains,  or  for  unloading  or  deliver- 
ing freight,  and  this  was  as  much  a  part  of  the  inter- 
state transportation  as  was  the  movement  across  the 
state  line." 

§  521.     Servants  of  Railroad  Companies  Handling 
United  States  Mail  in  Connection  with  Interstate  Trains. 

The  transportation  of  United  States  mail  by  common 
carriers  by  railroad  stands  upon  the  same  footing  ag  the 

"Trains     that      came     into     the  that  day,  Sunday,  no  local  freights 

yards    consisted    of    cars    passing  were     handled.       This    testimony 

from   one    state   to   another,    and,  warranted  the  jury  in 'finding  that 

according  to  plaintiff's  testimony,  plaintiff  was  engaged  in  interstate 

he  was  walking  through  the  yard  commerce.''     Southern  Ry.  Co.  v. 

noting   cars   to   be   made   up   into  Fisher,  Ala.  ,  74  So.  580. 

trains    Oor    through    traffic.      On 


§    521]  MISCELL.ANEOUS  EMPLOYES.  905 

transportation  of  freiglit,  baggage  or  otlier  commodities. 
The  fact  that  the  carriage  is  for  the  federal  Govern- 
ment does  not  differentiate  the  service  from  that  ren- 
dered for  individuals.  It  is  a  part  of  the  regular  busi- 
ness of  railroads  from  which  they  derive  a  substantial 
revenue.  An  assistant  station  agent,  tiiercfore,  on  his 
way  from  a  depot  to  the  mail  car  of  an  interstate  train 
for  the  purpose  of  taking  United  States  mail  from  the 
train  to  the  station  was  engaged  in  interstate  commerce 
within  the  federal  act.^°  In  another  case,  it  appeared 
that  a  call  boy  in  the  service  of  a  railroad  company  was 
killed  while  delivering  United  States  mail  from  the  de- 
fendant's depot  to  one  of  its  interstate  trains.  It  was 
contended  on  behalf  of  his  beneficiaries  that,  inasmuch 
as  the  carriage  in  regard  to  which  the  employer  was  en- 
gaged, in  so  far  as  any  service  of  deceased  was  con- 
cerned, at  the  time  he  received  his  injury,  was  the  car- 
riage of  United  States  mail,  it  was  not  and  could  not 
be,  in  respect  to  such  service,  a  common  carrier  engaged 
in  interstate  commerce  within  the  meaning  of  the  fed- 
eral act  and  that,  therefore,  the  state  compensation  act 
applied.  But  in  rejecting  this  contention,  the  supreme 
court  of  California  said:^'  '' Basing  their  claim  upon 
certain  decisions  to  the  effect  that  a  railroad  company 
in  carrying  United  States  mail  is  not,  with  respect  to 
such  service,  acting  as  a  'common  carrier,'  with  the 
corresponding  rights  and  liabilities  of  that  relation,  but 
is,  in  that  particular  service,  serving  as  an  agency  of 
government  (see  Atchison,  etc.,  Ry.  Co.  v.  U.  S.,  225 
U.  S.  640,  32  Sup.  Ct.  702,  5G  L.  Ed.  1236;  Bankers' 
Mutual  Casualty  Co.  v.  Minneapolis,  etc.,  Ry.  Co.,  117 
Fed.  434,  54  C.C.  A.  608,  65  L.  R.  A.  397;  Banking  Co. 
V.  Lampley,  76  Ala.  357,  52  Am.  Rep.  334;  Boston  Ins. 
Co.  V.  Chicago,  etc.,  Co.,  118  Iowa,  423,  92  N.  W.  88,  59 
L.  R.  A.  796),  it  is  urged  by  petitioner  that  the  federal 
Employers'  Liability  Act  can  have  no  application  here. 
It  is  urged  by  counsel  that  the  act  applies  only  to  such 

30.    Lynch  v.  Boston  &  M.  R.  R.,  31.   Zenz  v.  Industrial  Ace.  Com- 

227  Mass.  123,  116  N.  E.  401.  mission,  Cal.  ,   168   Pac. 

364. 


906  Injuries  to  Interstate  Employes.         [§  521 

service  as  is  being  performed  by  the  railroad  company 
under  such  circumstances  as  make  it  a  'common  car- 
rier,' with  all  the  resultant  legal  rights  and  obligations, 
with  relation  to  the  person  for  whom  the  service  is  per- 
formed. The  language  of  the  act  is:  'That  every  com- 
mon carrier  by  railroad  while  engaging  in  commerce  be- 
tween any  of  the  several  states  or  territories  *  *  * 
shall  be  liable  in  damages  to  any  jjerson  suffering  in- 
jury while  he  is  employed  by  such  carrier  in  such  com- 
merce, or,  in  case  of  the  death  of  such  employe,  to  his 
or  her  personal  representative,'  etc.  No  one  of  the 
cases  cited  by  learned  counsel  for  petitioner  arose  under 
the  federal  Employers'  Liability  Act,  and  cannot  be 
taken  aa  authority  upon  its  proper  construction.  The 
first  case  cited  (Atchison,  etc.,  Ry.  Co.  v.  U.  S.,  supra) 
had  to  do  solely  with  the  question,  of  the  relation  of  the 
carrier  of  mail  to  the  government,  its  rights  and  liabili- 
ties in  regard  thereto,  and  it  was  held  that  with  rela- 
tion to  the  government  it  was  not  'acting  as  a  com- 
mon carrier,  with  corresponding  rights  and  liabilities, 
but  as  an  agency  of  the  government  under  contract  with 
the  government.  In  the  other  cases  the  litigation  in- 
volved the  question  of  the  liability  of  the  carrier  to 
senders  and  addressees  of  mail  matter.  It  was  held  that 
the  carrier  of  mail  was  not,  in  respect  to  senders  and 
addressees  of  mail,  'a  common  carrier,'  with  correspond- 
ing rights  and  liabilities,  but,  with  regard  to  them,  was 
acting  solely  as  a  government  agency.  We  think  this 
distinction,  so  important  when  we  are  considering  the 
question  of  the  rights  and  obligations  of  the  railroad 
carrier  with  relation  to  the  government,  and  the  senders 
and  addressees  of  mail,  is  unimportant  here.  In  enact- 
ing the  federal  Employers'  Liabilit}^  Act,  Congress  was 
endeavoring  to  cover  the  whole  field  of  the  relations  be- 
tween carriers  by  railroad  engaged  in  interstate  com- 
merce and  their  employes,  w4th  respect  to  their  obliga- 
tions to  the  employes,  and  the  remedies  of  the  latter  for 
any  violation  of  those  obligations.  Whether  in  a  par- 
ticular case  one  primarily  engaged  in  the  business  of  a 
common  carrier  is  carrying  particular  goods  in  that  capac- 
ity rather  than  as  a  mere  agent  or  under  some  other 


§  522]  MiscETXANEOus  Employes.  907 

kind  of  contract  is  of  iin])ortance  only  as  relates  to  his 
ol)ligations  and  lia))i lilies  to  those  for  whom  he  carries, 
a  matter  having-  no  i-eal  ])eitinency  to  the  subject  matter 
of  this  legislation.  To  our  minds,  the  expression  'com- 
mon carrier  by  railroad'  was  used  simply  to  designate 
llic  class  of  emi)l().\('r  belonging  to  the  act,  and,  as  put 
by  counsel  foi'  r(>s])ondents,  'in  the  genei-ic  definitive 
sense'  as  including  only  common  carriers  'l)y  railroad' 
as  distinguished  from  common  carriers  by  other  means 
of  transportation.  If  the  employer  is  primarily  en- 
gaged in  tlio  business  of  transi)orting  passengers  and 
freight  for  hire  by  railroad  as  a  common  carrier,  it 
comes  within  the  act,  as  to  its  railroad  of  course,  pro- 
vided always  that  it  is.  subject  to  the  act  only  while  en- 
gaged in  interstate  commerce,  and  only  on  account  of 
injuries  or  death  sutTered  by  an  employe  while  he  is  em- 
ployed by  such  carrier  in  such  commerce.  That  the 
Atchison,  Topeka  «&  Santa  Fe  Railroad  Company  was 
primarily  a  'common  carrier  by  railroad,'  actually  en- 
gaged in  its  business  as  such  at  the  time  of  the  accident, 
is  not  questioned.  The  remaining  question  is,  then, 
whether  iji  the  matter  of  the  transportation  of  its  mail 
it  was  engaged  in  interstate  commerce,  entirely  re- 
gardless of  whether  it  transported  such  mail,  so  far 
as  its  reUitions  with  the  government  are  concerned, 
as  a  common  carrier  or  as  an  agency  of  the  g'overn- 
ment.  We  tliink  there  can  be  no  serious  question,  in 
view  of  the  decisions,  that  the  transportation  of  mail 
between  different  states  and  territories  is  interstate 
commerce." 

§  522.  Agents  of  Express  Companies.  Agents  of 
express  comi)anies  riding  on  passenger  trains  are  not 
employes  of  the  railroad  company  within  the  meaning 
of  the  federal  act  where  they  are  paid  and  employed  by 
the  express  companies  although  they  handle  baggage  of 
passengers  on  the  train. ^^  In  another  case  it  was  de- 
cided that  an  express  messenger  employed  and  paid  by 

32.    Higgins   v.   Erie   R.   Co.,   89       K.  &  T.  R.  Co.  v.  West,  38  Okla. 
N.  .T.  L.  C29,  99  Atl.  98;   Mis.souri,       581.  134  Pac.  G55. 


908  Injuries  to  Interstate  Employes.         [§  522 

an  express  company,  while  riding  on  a  passenger  train 
of  a  railroad  company  and  looking  after  the  express 
business  of  his  employer  was  presumed  to  be  a  passen- 
ger and  not  a  servant  of  the  railroad  company  although 
he  was  killed  while  so  employed  through  the  negligence 
of  the  railroad  company's  employes.''  It  was  held  by  the 
court  that,  in  the  absence  of  any  evidence  that  he  was 
employed  by  the  railroad  company,  the  evidence  was 
sufficient  to  show  that  the  negligence  of  the  defendant 
caused  his  death. 

§  523.     Interstate   Status   of   Express   Messengers 
Employed  Jointly  by  Railroad  and  Express  Companies. 

But  the  federal  act  does  include  an  express  messenger 
employed  jointly  by  an  express  company  and  a  common, 
carrier  by  rail  if  he  is  injured  while  working  for  the 
railroad  company  in  interstate  commerce.  Thus,  an  ex- 
press messenger  in  the  employ  of  an  express  company 
on  a  train  running  between  "Washington  and  Montana 
who  was  also  employed  by  the  railroad  company  to  oper- 
ate the  electric  plant  of  the  train  in  the  express  car, 
was  within  the  domain  of  the  federal  act.''  On  the  other 
hand,  a  station  agent  who  was  a  joint  employe  of  an  ex- 
press and  a  railroad  company  was  not  an  employe  of 
the  railroad  company  within,  the  meaning  of  the  federal 
act  while  he  was  removing  an  interstate  express  ship- 
ment from  a  depot  platform  into  the  station.'' 

§  524.  Pullman  Employes.  Persons  employed 
jointly  by  a  sleeping  car  company  and  a  railroad  com- 
pany are  within  the  protection  of  the  federal  act.  A 
Pullman  .porter  was  employed  on  a  sleeping  car  which 
was  owned  jointly  by  the  Pullman  Company  and  a  rail- 
road company  and  the  car  was  operated  by  them  as  an 
association  under  a  contract.  It  was  held  that  the  ad- 
ministrator of  his  estate  could  recover  under  the  nation- 

33.    Missouri,  K.  &  T.  R.  Co.  of      R.  Co.,  90  Wash.  234,  155  Pac.  1063, 
Texas    v.    Blalack,    105    Tex.    296,      157  Pac.  461. 
147   S.  W.  559.  35.    Bogart  v.    New   York   Cent. 

34     Wesseler  v.  Great  Northern      &  H.  River  R.  Co.,  171  N.  Y.  App. 

Div.  652,  157  N.  Y.  Supp.  420. 


<^  525]  Miscellaneous  Employes.  909 

al  statute.'"  On  the  other  hand  in  another  case  the  rail- 
road company  simply  hauled  cars  of  the  Pullman  Com- 
pany under  a  contract  and  it  was  decided  that  a  porter 
on  tlie  sleeping  car  belonging  to  the  Pullman  Company 
was  not  an  employe  of  the  raih'oad  company  within 
the  meaning  of  the  federal  statute." 

§  525.  Miscellaneous  Employes.  A  gardner  who 
was  employed  by  a  common  carrier  by  railroad  of  inter- 
state commerce,  in  taking  care  of  the  depot  premises 
and  buiTiing  trash  gathered  in  the  yard,  was  not  employ- 
ed in  interstate  commerce."'  In  an  action  under  the 
federal  act,  a  petition  alleged  that  the  defendant  rail- 
road company  was  a  common  carrier  engaged  in  inter- 
state commerce;  that  as  a  part  of  its  interstate  trans- 
portation it  owned  and  operated  a  telegraph  line  using 
it  for  the  purpose  of  directing  the  operation  of  trains; 
that  the  plaintiff  was  employed  by  the  company  in  re- 
pairing this  line  and  was  injured  while  doing  so.  The 
court  held  that  the  petition  pleaded  sufficient  facts  to 
show  that  the  plaintiff  was  engaged  in  interstate  com- 
merce.'' A  watchman  on  a  "dead"  locomotive  engine 
being  transported  in  an  interstate  train  was  held  to 
have  been  engaged  in  interstate  commerce."  A  laborer 
employed  in  carrying  coal  to  heat  the  stoves  in  a  car 
repair  shop  of  a  common  carrier  by  railroad  where  other 
employes  were  engaged  in  repairing  rolling  stock  used 
interchangeably  in  transporting  intrastate  and  interstate 
commerce,  was  held  to  be  within  the  protection  of  the 
federal  act;*^  but  on  writ  of  error  to  the  federal  Supreme 
Court,  this  case  was  reversed  in  a  memorandum  opinion." 

36.  Oliver  v.  Northern  Pac.  Ry.  39.    Deal    v.    Coal    &    Coke    Ry. 
Co.    196  Fed.  432.  Co.,  215  Fed.  285. 

37.  Martin  v.  New  York,  N.  H.  40.    Atlantic  Coast  Line  R.  Co. 
&  H    R    Co     241  Fed.  696;   Robin-  v.  Jones,  9  Ala.  499,  63   So.  693. 
son  V    Baltimore  &  O.  R.  Co.,  40  41.    Cousins  v.  Illinois  Cent.  R. 
App    Cas.    (D.   C.)    169,  L.   R.   A.  Co.,  126  Minn.  172,  6  N.  C.  C.  A. 
1915D   510.  1S2,  148  N.  W.  58. 

38.  Galveston,   H.   &   S.   A.   Ry.  42.    Illinois     Cent.     R.     Co.     v. 

Co.   V.   Chojnacky,  Tex.   Civ.  Cousins,  241  U.  S.  641.  60  L.  Ed. 

App  163  S   W.  1011.  1216,  36  Sup.  Ct.  446  (mem.  dec). 


910  Injuries  to  Interstate  Employes.         [^  525 

A  carpenter  building  forms  on  the  right  of  way  of  an 
interstate  railroad,  into  which  concrete  was  to  be  poured 
for  the  puii^ose  of  forming  the  retaining  walls  for  the 
roadbed  was  not  engaged  in  interstate  commerce  be- 
cause such  work  did  not  have  a  direct  and  substan- 
tial connection  with  interstate  transportation.*'  A  line- 
man engaged  in  wiping  the  insulators  on  a  power  line 
transmitting  alternating  current  of  high  voltage  from 
a  main  power  house  to  the  sub-station  of  an  electric 
interstate  railroad,  was  held  not  to  be  within  the  federal 
act  for  the  reason  that  his  connection  with  interstate 
commerce  was  too  remote/* 

43.  Dickinson  v.  Industrial  J.,  and  Melbin,  J.,  dissenting. 
Board  of  Illinois,  280  111.  342,  117  This  case  was  pending  in  the  fed- 
N    E.  438.  eral    Supreme    Court    on    writ    of 

44.  Southern  P.  Co.  v.  Indus-  certiorari  at  the  time  of  the  pub- 
trial    Accident    Commission, lication  of  this  work. 

Cal.  ,   171   Pac.   1071,   Wilbur, 


CHAPTER   .\XVII 

Negligence    Under    Federal    Act. 

Sec.  526.     'J'he  Statutory  Provision. 

Sec.  527.     Two  Brandies  of  Negligence  Under  First  Section. 

Sec.  528.     Negligence  Criterion  of  Liability  of  Carrier  under  National 
Statute. 

Sec.    529.     Negligence   need   not   be   Proven    when   Violation   of  SaieLy 
Appliance  Act  is  Cause  of  Injury. 

Sec.    5.30.     Negligence    of    Human    Agencies    Not    Limited    to    Fellow- 
Servants  as  Construed  under  Common  Law. 

Sec.  531.     Negligence  of  Common  Carrier  Need  Not  l.e  Shown  by  Direct 
or   Positive   Proof. 

Sec.  532.     Judicial  Definition  of  Negligence. 

Sec.   533.     Carrier  not   Required   to   Furnish   Latest,   Best   and   Safest 
Appliances  for  Interstate  Employes. 

Sec.   534.     Custom  or   Practice   of   Other   Railroads   not   Conclu.sive   in 
Determining  Exercise  of  Ordinary  Care. 

Sec.  535.     Decisions  of  National  Courts  Control  in  Determining  Negli- 
gence— Contrary   Rulings. 

Sec.  536.     Conflicting  Rulings  Finally  Eliminated  by  Controlling  Deci- 
sions of  National  Supreme  Court. 

Sec.   537.     Negligent   Act   Must   have   been   Committed    while   Employe 
was  Acting  within  Scope  of  Employment. 

Sec.  538.     Negligence  Must  be  Proximate  Cause  of  Injury. 

Sec.  539.     Meaning  of  the  Phrase  "In  Whole  or  ia  Part". 

Sec.    540.     State    Statutes    Creating   Presumption    of   Negligence    from 
Injury  Inapplicable  to  Interstate  Employes. 

Sec.    541.     Mississippi   "Prima   Facie"   Statute  Held   Applicable   to  Ac- 
tions under  Federal  Act. 

Sec.  542.     Sufficiency  of   Evidence  of  Negligence   to   Submit   Cause  to 
Jury  not  Governed  by  Decisions  of  State  Courts. 

Sec.  543.     Effect  of  State  Law  Prohibiting  Employment  of  Minors  in 
Determining  Negligence. 

Sec.  544.     Applicability  of  Rule  of  Res  Ipsa  Loquitur  to  Actions  under 
Federal   Act — Conflicting  Rulings. 

Sec.  545.     Recovery  Cannot  be  Defeated  When  Defendant's  Negligence 
is  Part  of  Causation. 

Sec.  546.     Casualties  Due  to  Sole  Negligence  of  Employe,  no  Recovery 
under   Federal   Act. 

Sec.  547.     Foregoing  Principle  Further  Illustrated  and  Applied. 

Sec.  548.     Cases  Under  Federal  Act  in  Which  the  Facts  were  Held  to 
Show  Actionable  Negligence. 

Sec.  549.     Cases  Under  Federal  Act  in  Which  the  Facts  were  Held  not 
to  Show  Actionable  Negligence. 

(911) 


9^'2  Injuries  to  Inteestate  Employes.         [^  526 

Sec.  550.  Statute  Covers  Acts  of  Intrastate  Employes  and  Defects  in 
Instrumentalities  Used  Solely  in  Intrastate  Commerce. 

Sec.  551.  Intrastate  Employes  Injured  by  Negligence  of  Interstate 
Employes  or  Instrumentalities  of  Interstate  Commeitce 
have  no  Remedy  under  Federal  Act. 

Sec.  552.     Willful  Wrongs  not  Within  Terms  of  the  Act. 

§  526.  The  Statutory  Provision.  .The  first  section 
of  the  Federal  Emphiyers'  Liability  Act  provides  that 
every  common  carrier  by  rail  wliile  engaging  in  inter- 
state commerce  and  while  the  servant  injured  or  killed 
is  employed  in  such  commerce  is  liable  "for  such  injury 
or  death  resulting  in  whole  or  in  part  from  the  negli- 
gence of  any  of  the  officers,  agents  or  employes  of  such 
carrier,  or  by  reason  of  any  defect  or  insufficiency  due 
to  its  negligence,  in  its  cars,  engines,  appliances,  ma- 
cinery,  track,  road-bed,  works,  boats,  wharves,  or  other 
equipments. ' ' 

§  527.  Two  Branches  of  Negligence  Under  First 
Section.  The  clause  relating  to  negligence  in  the  first 
section  of  the  federal  act  has  two  branches;  one  govern- 
ing the  negligence  of  any  of  the  officers,  agents  or  em- 
ployes of  the  carrier,  which  abolishes  the  common  law 
fellow- servant  doctrine;  and  the  other  relating  to  de- 
fects and  insufficiencies  due  to  negligence  in  the  rail- 
road's rolling  stock,  machinery,  track,  road-bed,  works, 
boats,  wharves  or  other  equipment.  These  two  clauses, 
it  has  been  held,  cover  any  and  all  negligent  acts  of 
which  the  carrier  could  have  been  guilty  under  the 
common  law.'  "The  language",  said  the  court  in  the 
case  cited,  "used  is,  'any  officers,  agents,  or  employes,' 
and  this  is  broad  enough  to  cover  any  negligence  for 
which  a  common  carrier  engaged  in  interstate  commerce 
can  be  responsible  to  its  employes  therein.  It  is  true 
that  in  the  second  class  the  language  used  is  'its  negli- 
gence.' But  its  negligence  must  be  negligence  also  of 
those  officers,  agents,  and  employes  to  whom  it  has  in- 
trusted  the  duty  of  looking   after  the   condition    of  its 

1.     De  Altey  v.  Chesapeake  &  O.      Ry.   Co.,  201   Fed.   591. 


^  527]  Negligence  Under  Fedekai.  Act.  913 

cars,  etc.  It  can  only  act  through  ofTicors,  agents,  and 
employes,  and  the  failure  to  look  after  such  condition 
proi)erly  is  necessarily  negligence  on  the  part  of  officers, 
agents,  and  employes  to  whom  it  has  intrusted  the  duty 
of  looking  thereafter.  The  two  classes  seem,  therefore, 
to  overlap,  but  I  do  not  think  that  one  is  justified  in 
limiting  the  language  of  the  first  class  to  prevent  over- 
lapping, which  would  be  done  by  limiting  the  first  class 
to  the  negligence  of  servants  for  which  the  common 
carrier  is  not  liable  at  common  law,  leaving  the  second 
class  to  cover  the  negligence  of  servants  for  whom  it  is 
in  such  cases  as  it  covers.  By  so  doing  there  would  be 
eliminated  from  the  act  liability  thereunder  for  certain 
negligence  on  the  part  of  servants  for  whom  the  carrier 
is  liable  at  common  law,  to  wit,  negligence  on  the  part 
of  servants  who  are  not  fellow  servants,  but  which  does 
not  relate  to  its  'cars,  appliances,  machinery,  track, 
roadbed,  works,  boats,  wharves,  or  other  equipment,' 
as  in  the  case  here,  where,  according  to  the  allegation 
of  the  petition,  there  was  negligence  on  the  part  of  sucli 
servants  of  defendant  to  whom  it  had  intrusted  its  non- 
delegable duty  of  adoi)ting  and  promulgating  the  proper 
rules  as  to  operation  of  its  trains.  It  seems  to  me  that 
it  was  the  intent  and  purpose  of  the  act  to  cover  every 
.negligence  for  which  a  common  carrier  engaged  in  in- 
terstate commerce  might  be  liable  to  its  employes  m 
such  commerce.  It  is  settled  that  it  supersedes  all  other 
common-law  and  statutory  liability  on  the  part  of  such 
common  carriers  to  such  employes.  If,  then,  the  act 
does  not  cover  every  negligence  for  which  such  common 
carrier  may  be  liable  to  such  employes,  there  are  cases 
of  negligence,  and  this,  as  to  the  negligence  in  not 
adopting  and  promulgating  the  rule  in  question,  is  one 
of  them,  in  which  there  is  no  liability  at  all.  But  this 
cannot  have  been  the  intention  of  Congress.  It  is  diffi- 
cult, however,  to  explain  why  it  separated  the  cases  of 
liability  into  two  classes,  where  the  first  class  is  broad 
enough  in  terms  to  include  the  second  class,  and,  indeed, 
to  cover  every  case  of  negligence  for  which  the  common 

1   Control    Carriers   58 


914  Injuetes  to  Intee^state  Employes.         [^  527 

carrier  mig-ht  be  made  liable,  and  no  explanation  thereof 
occnrs  to  me.  But  the  inability  to  find  such  explanation 
does  not  justify  one  in  limiting  the  first  class  to  fellow 
servants  so  as  to  get.  two  distinct  classes,  which  do  not 
overlap  each  other,  thereby  eliminating  from  the  act 
certain  cases  of  negligence  for  which  there  is  liability  at 
common  law.  It  is  sufficient  to  say  that  the  act  in  ex- 
press terms  covers  the  negligence  of  any  of  the  officers, 
agents,  or  employes  of  the  common  carrier,  and  the  fail- 
ure to  adopt  and  promulgate  a  proper  rule  for  the  op- 
eration of  its  train  is  negligence  on  the  part  of  its 
officers,  agents,  and  employes  to  whom  it  has  intrusted 
the  performance  of  such  dut}^" 

§  528.  Negligence  Criterion  of  Liability  of  Carrier 
under  National  Statute.  Except  that  it  abolishes  the 
common  law  rule  of  non-liability  for  injuries  to  em- 
ployes due  to  the  negligence  of  fellow  servants,  the  first 
section  of  the  Federal  Employers'  Liability  Act  which 
defines  when  a  carrier  is  liable,  adopts  the  common  law 
rule  of  negligence  as  to  the  two  branches  of  liability 
mentioned  therein."    Negligence  is  the  basis  of  all  liabil- 

2.    United     States.       Nelson    v.  Indiana.     Chicago    &    E.    R.    Co. 

Southern   Ry.  Co.,  246  U.   S.   253,  v.  Webb,  — Ind.  App.— ,  113  N.  E. 

62    L.    Ed.—,    38    Sup^.    Ct.    233;  748. 

Chicago  &  N.  W.  R.  Co.  v.  Bower,  Kansas.     Spinden  v.  Atchison,  T. 

241   U.   S.   470.   60   L.   Ed.  1107,   36  &   S.   P.    R.   Co.,   95   Kan.  474,   148 

Sup.  Ct.  624;     Southern  R.  Co.  v.  Pac.  747. 

Gray,    241    U.    S.    333,    60    L.    Ed.  Kentucky,     Norfolk  &  W.  R.  Co. 

1030.    36    Sup.    Ct.    558;     Pennsyl-  v.  Short's  Adm'r,  171  Ky.  647,  188 

vania  R.  Co.  v.  Glas,  152  C.  C.  A.  S.    W.    786. 

244,    239    Fed.   255;     Virginian    R.  Michigan.      Gaines      v.      Grand 

Co.  V.   Linkous,  148  C.  C.  A.  543,  Trunk  R.  Co.  of  Canada,  193  Mich. 

235  Fed.  49.  398,  159  N.  W.  542. 

Arkansas.     St.  Louis,  I.  M.  &  S.  New    Hampshire.      Wilson        v. 

R.  Co.,   V.   Ingram,   124   Ark.   298,  Grand    Trunk    Ry.    Co.,— N.    H.— , 

187  S.  W.  452.  97   Atl.    981. 

Florida.    Louisville  &  N.  R.  Co.  New  York.     Oorico  v.  Smith,  97 

V.  Rhoda,— Fla.— ,  74  So.  19.  N.  Y.   Misc.   447,   161   N.   Y.  Supp. 

Georgia.      Ivey    v.    Louisville   &  293. 

N.  R.  Co.,  18  Ga.  App.  434,  89  S.  North    Carolina.    Hinson    v.    At- 

E.  629.  lanta  &  C.  Air  Line  R.  Co.,  172  N. 


^  528]     .    Negligence   Under   Federal   Act. 


915 


ity  under  the  act,  and  there  ean  be  no  recovery  under 
the  statute  in  the  absence  of  negligence  on  the  part  of 
the  raihoiu]  company  or  some  of  its  employes.^     Under 


C.  C46,  9U  S.  R.  772;  Ren  v.  Sea 
board  Air  Line  R.  Co.,  170  N.  C 
128,   86   S.    E.   964. 

North  Dakota.  Manson 
Northern  R.  Co.,  CI  N.  D. 
N.    W.   32. 

Oklahoma.  Palmer  v. 
Falls  &  N.  W.  Ry.  Co., 
— ,  159  Pac.  1115. 

South  Carolina.  Steele  v.  Atlan 
tic  Coast  Line  R.  Co.,  1U3  S.  C 
102.  87  S.  E.   639. 

Texas.    Gulf,  C.  &  S.  F.  Ry.  Co 


V.  Great 
643,  155 

Wichita, 
-  Okla. 


—    Tex.   Civ.   App.  — , 
579. 

Going's  Adm'x  v.  Nor- 
R.  Co.,  119  Va.  543,  89 


V.   Cooper, 
191   S.   W. 

Virginia, 
folk  &  W. 
S.    E.   914. 

Washington.  Martin  v.  Northern 
P.  Ry.  Co.,  87  Wash.  91,  151  Pac. 
113. 

West  Virginia.  Gulp  v.  Virgin- 
ian R.  Co.,  77  W.  Va.  125,  87  S.  E. 
187;  Easter  v.  Virginian  R.  Ck)., 
76  W.  Va.  383,  11  N.  C.  C.  A.  101, 
86  S.  E.  37. 

"Nowhere  in  the  act  is  any  defi- 
nition of  negligence  to  be  found. 
Therefore  the  term  must  be  taken 
to  mean  such  act  of  commission  or 
omission  as  would  at  common  law 
have  been  sufflcient  to  entitle  the 
case  to  be  submitted  to  a  jury." 
Western  Maryland  R.  Co.  v.  Ban- 
ner,  130  Md.   581,   101   Atl.   587. 

Negligence  is  an  affirmative  fact 
which  the  plaintiff  must  establish 
under  the  Federal  Liability  Act, 
according  to  the  principles  of  the 
common  law  as  applied  in  the  fed- 
eral courts.     New  Orleans  &  N.  E. 

R.   Co.   V.  Harris.  240   U.   S.  , 

62   L.   Ed.,  ,   38   Sup.   Ct.   535, 

decided  June  3,  1918. 


3.  United  States.  Chicago  &  N. 
'W.  R.  Co.  V.  Bower,  241  U.  S.  470, 
60  L.  Ed.  1107,  36  Sup.  Ct.  G24; 
Southern  R.  Co.  v.  Gray,  241  U. 
S.  333,  60  L.  Ed.  1030,  36  Sup.  Ct. 
558;  Great  Northern  R.  Co.  v. 
Wiles,  240  U.  S.  444,  60  L.  Ed.  732, 
'36  Sup.  Ct.  406;  Illinois  Cent.  R. 
Co.  V.  Skaggs,  240  U.  S.  66,  60  L. 
Ed.  528,  36  Sup.  Ct.  249;  Chicago 
R.  I.  &  P.  R.  Co.  V.  Wright,  239 
U.  S.  548,  60  L.  Ed.  431,  36  Sup. 
Ct.  185;  Reese  v./ Philadelphia  & 
R.  R.  Co.,  239  U.  S.  463,  60  L.  Ed. 
384,  36  Sup.  Ct.  134,  10  N.  C.  C.  A. 
926;  Texas  &  P.  R.  Co.  v.  Murphy, 
238  U.  S.  320,  59  L.  Ed.  1329,  35 
Sup.  Ct.  779;  Toledo,  St.  L.  & 
W.  R.  Co.  V.  Slavin,  236  U.  S.  454, 
59  L.  Ed.  671,  35  Sup.  Ct.  306; 
Kansas  City,  C.  &  S.  R.  Co.  v.  Shoe- 
maker, 157  C.  C.  A.  413,  245  Fed. 
117;  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  V.  Hall,  155  C.  C.  A.  606,  243 
Fed.  76;  Pennsylvania  R.  Co.  v. 
Glas,  152  C.  C.  A.  244,  239  Fed. 
256;  Smith  V.  Pennsylvania  R.  Co., 
151  C.  C.  A.  277,  239  Fed.  103,  15 
N.  C  C.  A.  371;  Philadelphia  & 
R.  R.  Co.  v.  Marland.  152  C.  C.  A. 
51,  239  Fed.  1,  15  N.  C.  C.  A.  402; 
Hughes  v.  Delaware,  L.  &  W.  R. 
Co.,  233  Fed.  118;  Virginian  R. 
Co.  v.  Linkous,  144  C.  C.  A.  386, 
230    Fed.    88. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.  Co.  v.  Steel,  129  Ark.  520,  15 
N.  C.  C.  A.  49,  197  S.  W.  288;  Lusk 
v.  Osborn,  127  Ark.  170,  191  S.  W. 
944;  St.  Louis  I.  M.  &  S.  R.  Co.  v. 
Howard,  124  Ark.  588,  188  S.  W. 
14;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Stewart,  124  Ark.  437,  187  S.  W. 
920;    St.  Louis,  I.  M.  &  S.  R.  Co. 


916  Injuries  to  Interstate  Employes.    .    [§  528 

the  act,  the  company  is  not  a  guarantor  of  the  safety  of 


V.  Ingram,  124  Ark.  298,  187  S.  W. 
452. 

Florida.  Louisville  &  N.  R.  Co. 
V.  Rhoda,  —  Fla.  — ,  74  So.  19. 

Georgia.  Southern  Ry.  Co.  v. 
Blackwell,  —  Ga.  App.  — ,  93  S.  E. 
321;  Louisville  &  N.  R.  Co.  v. 
Coatney,  —  Ga.  App.  — ,  93  S.  E. 
228;  Rush  v.  Southern  Ry.  Co.,  — 
Ga.  App.  — ,  91  S.  E.  898;  Lan- 
drum  V.  Western  &  A.  R.  Co.,  146 
Ga.  88,  90  S.  E.  710;  Central  of 
Georgia  R.  Co.  v.  De  Loach,  18  Ga. 
App.  362,  89  S.  E.  433;  Alabama 
Great  Southern  R.  Co.  v.  Tidwell, 
145  Ga.  190,  88  S.  E.  939;  Louis- 
ville &  N.  u  Co.  V.  Kemp,  140  Ga. 
657,  79  S.  E.  558. 

Illinois.  Devine  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  266  in.  248,  Ann. 
Cas.  1916B  481,  107  N.  E.  595. 

Indiana.  Chicago  &  B.  R.  Co.  v. 
Mitchell,  —  Ind.  App.  — ,  110  N.  E. 
78;  Southern  R.  Co.  v.  Howerton, 
182  Ind.  208,  105  N.  E.  1025,  106 
N.  E.  369. 

Kansas.  Westling  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.,  —  Kan.  — ,  165 
Pac.  669;  Roebuck  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  99  Kan.  544,  L.  R. 
A.  1917E  741,  162  Pac.  1153;  Smith 
v.  St.  Louis  &  S.  F.  R.  Co.,  95 
Kan.  451,  148  Pac.  759;  Land  v.  St. 
Louis  &  S.  F.  R.  Co.,  95  Kan.  441, 
148  Pac.  612;  Martin  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  93  Kan.  681,  145 
Pac.  849. 

Kentucky.  Louisville  &  N.  R. 
Co.  v.  Netherton,  175  Ky.  159,  193 
S.  W.  1035;  Norfolk  &  W.  R.  Co. 
V.  Short's  Adm'r,  171  Ky.  647,  188 
S.  W.  786;  Sutton's  Adm'r'  v. 
Louisville  &  N.  R.  Co.,  168  Ky.  81, 
181  S.  W.  938;  Kentucky  &  T.  R. 
Co.  V.  Minton,  167  Ky.  516,  180  S. 
W.  831;  Louisville  &  N.  R.  Co.  v. 
Henry,  167  Ky.  151,  180  S.  W.  74; 


Davis  v.  Chesapeake  &  O.  R.  Co., 
166  Ky.  490,  179  S.  W.  422;  Cin- 
cinnati N.  O.  &  T.  P  .R.  Co.  V.  Gold- 
ston,  163  Ky.  42,  173  S.  W.  161; 
Cinclnati,  N.  0.  &  T.  P.  R.  Co.  v. 
Goldston,  156  Ky.  410,  161  S.  W. 
246;  Long  v.  Southern  R.  in  Ken- 
tucky, 155  Ky.  286,  159  S.  W.  779. 
Louisiana.  Anderson  v.  Texas  & 
P.  R.  Co.,  139  La.  1104,  72  So.  751. 
Maine.  Norton  v.  Maine  Cent. 
R.  Co.,  —  Me.  — ,  100  Atl.  598. 

Maryland.  Western  Maryland 
R.  Co.  V.  Sanner,  130  Md.  581,  101 
Atl.  587;  Baltimore  &  O.  R.  Co.  v. 
Branson,  128  Md.  678,  98  Atl.  225. 
Massachusetts.  Herlihy  v.  New 
York,  N.  H.  &  H.  R.  Co.,  227  Mass. 
168  116  N.  B.  546. 

Michigan.  Gaines  v.  Grand 
Trunk  R.  Co.  of  Canada,  193  Mich. 
398,  159  N.  W.  542;  Miller  v.  Mich- 
igan Cent.  R.  Co.,  185  Mich.  432, 
152  N.  W.  235;  Walsh  v.  Lake 
Shore  &  M.  S.  R.  Co.,  185  Mich. 
'177,  151  N.  W.  754;  Richardson  v. 
Detroit  &  M.  R.  Co.,  182  Mich, 
206,  148  N.  W.  397;  Gaines  v. 
'Detroit,  G.  H.  &  M.  R.  Co.,  181 
'Mich.  376,  148  N.  W.  397;  Hol- 
lingshead  v.  Detroit,  G.  H.  &  M. 
R.  Co.,  181  Mich.  547,  148  N.  W. 
171. 

Minnesota.  Beecroft  v.  Great 
Northern  R.  Co.,  134  Minn.  86,  158 
N.  W.  800;  Maijala  v.  Great 
Northern  R.  Co.,  133  Minn.  301, 
158  N.  W.  430;  Hurley  v.  Illinois 
Cent.  R.  Co.,  133  Minn.  101,  157 
N.  W.  1005;  La  Mere  v.  Railway 
Transfer  Co.,  125  Minn.  159,  Ann. 
Cas.  1915C  607,  145  N.  W.  1068. 
Mississippi.  Hooks  v.  New  Or- 
leans &  N.  E.  R.  Co.,  Ill  Miss. 
743,    72    So.    147.  ' 

Missouri.     Yoakum  v.  Lusk,  — 
Mo.  App.  — ,  193  S.  W.  635;    Win- 


"^  528]         Negligence  Under  Fedekal,  Act.  917 

the  place  of  work  or  of  the   machinery    and   appliances 


slow  V.  Missouri,  K.  &  T.  Ry.  Co. 
(Mo.  App.),  192  S.  W.  121;  Holtz- 
claw  V.  Chicago,  B.  &  Q.  R.  Co.,  — 
Mo.  App.  — ,  190  S.  W.  91;  Young 
V.  Lusk,  268  Mo.  025,  187  S.  W. 
849;  Blankenbaker  v.  St.  Louis  & 
S.  F.  R.  Co.  (Mo.),  187  S.  W.  840; 
Haines  v.  Chicago,  R.  I.  &  P.  Ry. 
193  Mo.  App.  453,  185  S.  W.  1187; 
Fish  V.  Chicago,  R.  L  &  P.  R.  Co., 
263  Mo.  106,  172  S.  W.  340;  Pan- 
key  V.  Atchison,  T.  &  S.  F.  R.  Co., 
180  Mo.  App.  185,  6  N.  C.  C.  A.  74, 
168  S.  W.  274. 

New  Hampshire.  Castonia  v. 
Maine  Cent.  R.  Co.,  —  N.  H.  — , 
100  Atl.  601;  Topore  v.  Boston  & 
M.  R.  R.  —  N.  H.  — ,  100  Atl.  153; 
Wilson  V.  Grand  Trunk  Ry.  Co., 
—  N.  H.  — ,  97  Atl.  981;  Caverhill 
V.  Boston  &  M.  R.  R.,  77  N.  H. 
330,  91  Atl.  917. 

New  Jersey.  Armbrecht  v.  Dela 
ware,  L.  &  W.  R.  Co.,  —  N.  J.  L. 
— ,  101  Atl.  203;  Grybowski  v. 
Erie  R.  Co.,  88  N.  J.  L.  1,  95  Atl. 
764. 

New  York.  White  v.  Lehigh  Val- 
ley R.  Co.,  220  N.  Y.  131,  115  N.  E. 
439;  Swartwood  v.  Lehigh  Valley 
R.  Co.,  169  N.  Y.  App.  Div.  759, 
155  N.  Y.  Supp.  778;  Gee  v.  Lehigh 
Valley  R.  Co.,  163  N.  Y.  App.  Div. 
274,  148  N.  Y.  Supp.  882;  Collins 
V.  Pennsylvania  R.  Co.,  163  N.  Y. 
App.  Div.  452,  148  N.  Y.  Supp.  777. 

Oklahoma.  Palmer  v.  Wichita 
Falls  &  N.  W.  Ry.  Co.,  —  Okla.  — , 
159  Pac.  1115;  Chicago,  R.  L  &  P. 
R.  Co.  V.  Felder,  —  Okla.  — ,  155 
Pac.  529. 

Oregon.  Emerson  v.  Portland, 
E.  &  E.  R.  Co.,  85  Ore.  229,  166 
Pac.  946;  Gekas  v.  Oregon-Wash- 
ington R.  &  Nav.  Co.,  75  Ore.  243, 
8  N.  C.  C.  A.  386,  146  Pac.  970. 


Pennsylvania.  Haas  v.  Erie  R. 
Co.,  254  Pa.  235,  98  Atl.  867; 
Waina  v.  Pennsylvania  Co.,  251 
Pa.  213,  96  Atl.  461;  Hartman  v. 
Western  Maryland  R.  Co.,  246  Pa. 
460,   92   Atl.   698. 

South  Carolina.  .Mulligan  v.  At- 
lantic Coast  Line  R.  Co.,  104  S.  C. 
173,  88  S.  E.  445;  Steele  v.  At- 
lantic Coast  Line  R.  Co.,  103  S.  C. 
102,   87   S.   E.  039. 

Texas.  Panhandle  &  S.  F.  Ry. 
Co.  V.  Fitts,  —  Tex.  Civ.  App.  — , 
188  S.  W.  528;  Houston,  E.  &  W. 
T.  Ry.  Co.  V.  Samford,  —  Tex. 
Civ.  App.  — ,  181  S.  W.  857. 

Vermont.  Sanderson  v.  Boston 
&  M.  R.  R.,  —  Vt.  — ,  101  Atl.  40; 
Robie  V.  Boston  &  M.  R.  R.,  —  Vt. 
— ,  100  Atl.  925. 

Virginia.  Norfolk  &  W.  R.  Co. 
V.  Tucker's  Adm'x,  120  Va..  540, 
91  S.  E.  614;  Going's  Adm'x  v. 
Norfolk  &  W.  R.  Co.,  119  Va.  543, 
89  S.  E.  914;  Chespeake  Western 
Ry.  V.  Shiflett's  Adm'x,  118  Va. 
03,  86  S.  E.  860. 

Washington.  Toler  v.  Northern 
Pac.  R.  Co.,  94  Wash.  360,  162  Pac. 
538;  Papoutsikis  v.  Spokane,  P.  & 
S.  R.  Co.,  89  Wash.  1,  153  Pac. 
1053;  Snyder  v  Great  Northern  R) 
Co.,  88  Wash.  49,  152  Pac.  703; 
Hobbs  V.  Great  Northern  R.  Co., 
80  Wash.  678,  L.  R.  A.  1915D  503, 
142   Pac.   20. 

West  Virginia.  Hull  v.  Virginia 
R.  Co.,  78  W.  Va.  25,  88  S.  E. 
1060;  Gulp  V.  Virginia  R.  Co., 
77W.  Va.  125,  87  S.  E.  187. 

Wisconsin.  MolzofE  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  162  Wis.  451, 
11  N.  C.  C.  A.  273,  156  N.  W.  467. 

There  is  no  presumption  of  neg- 
ligence against  the  defendant  in 
an   action   under  the   federal  act. 


918 


Injtjeies  to  Tnteestate  Employes.         [^  528 


furnished  its  employes.^  The  extent  of  its  duty  to  its 
employes,  is  to  see  that  ordinary  care  and  prudence  are 
exercised  to  the  end  that  the  place  in  which  the  work  is 
to  be  performed  and  the  tools  and  appliances  furnished 
may  be  safe  for  the  workmen/'     To  convict  a  defendant 


Louisville  &  N.  R.  Co.  v.  Coatney, 
supra. 

An  injury,  coming  within  the 
purview  of  the  federal  statute, 
must  result  in  whole  or  in  part 
from  negligence.  Chicago  &  E. 
R.  Co.  V.  Mitchell,  supra. 

In  order  to  determine  whether 
there  can  be  a  recovery  under  the 
federal  act,  it  is  first  necessary 
to  ascertain  whether  there  has 
been  actionable  negligence  on 
the  part  of  the  carrier;  for  not 
all  cases  of  accident  and  injury 
are  included  within  the  provi- 
sions of  the  act,  but  only  those 
in  which  negligence  is  the  cause 
from  which  the  injury  results. 
Western  Maryland  R.  Co.  v.  Ban- 
ner,  supra. 

"When  this  statute  is  invoked 
as  a  basis  of  liability  it  must  be 
shown  that  the  employei-*  is  a 
common  carrier  by  railroad  en- 
gaged in  interstate  commerce  and 
that  the  injury  to  the  employe 
came  while  he  was  employed  by 
the  carrier  in  such  commerce; 
and  of  course  negligence  must  be 
proved.  See  Roberts'  Injuries  to 
Interstate  Employes,  sec.  26,  et 
seq  and  cases  cited."  Hurley  v. 
Illinoise  Cent.  R.  Co.,  supra. 

It  is  not  enough  to  show  that 
the  defendant  may  have  been  guil- 
ty of  negligence.  The  evidence 
must  show  that  it  was  actually 
guilty.  Hull  V.  Virginian  Ry.  Co., 
supra. 

An  employe  '  'vvhile  walking 
along  a  railroad  track  received 
an  Injury  when  a  piece  of  a  cross 


tie  slivered  off  under  his  weight 
and  his  foot  slipped  between  the 
ties  where  the  ballast  was  five  or 
six  inches  below  the  top  of  the 
tie.  It  was  held  that  the  com- 
pany was  not  negligent  for  the 
reason  that  neither  the  condition 
of  the  tie,  nor  the  failure  to  bal- 
last to  the  top  of  the  tie,  was  a 
defect  of  such  a  character  as  to 
impair  safety  in  operation.  Nelson 
V.  Southern  Ry.  Co.,  246  U.  S.  253, 
62  L.  Ed.  — ,  38  Sup.  Ct.  233. 

Proof  that  the  decedent,  an  en- 
gineer, was  killed  in  a  collision 
between  the  locomotive  on  which 
he  was  riding  and  the  caboose  of 
a  standing  train  was  not  sufficient 
to  show  negligence  on  the  part  of 
the  defendant.  Lynch  v.  Dela- 
ware   &    H.    Co.,    App.    Div. 

,  170  N.  Y.  Supp.  412. 

4.  Kansas  City  Southern  R. 
Co.  V.  Livesay,  118  Ark.  304,  177 
S.  E.  875;  Miller  v.  Michigan 
Cent.  R.  Co.,  185  Mich.  432,  152 
N.  W.  235;  Hawkins  v.  St.  Louis 
&  S.  F.  R.  Co.,  189  Mo.  App.  201, 
174  S.  W.  129;  Toler  v.  North- 
ern Pac.  R.  Co.,  94  Wash.  360,  162 
Pac.  538. 

5.  United  States.  Chicago  &  N. 
W.  R.  Co.  V.  Bower,  241  U.  S.  470, 
60  L.  Ed.  1107,  36  Sup.  Ct.  624; 
Seaboard  Air  Line  R.  Co.  v.  Hor- 
ton,  233  U.  S.  492,  58  L.  Ed.  1062, 
34  Sup.  Ct.  635,  8  N.  C.  C.  A.  834; 
Ann.  Cas.  1915B  475,  rev'g  U2  N. 
C.  424,  78  S.  E.  494;  Charnock  v. 
Texas  &  P.  R.  Co.,  194  U.  S.  432. 
48  L.  Ed.  1057,  24  Sup.  Ct.  671; 
Philadelphia  &  R.  R.  Co.  v.  Mar- 


§  528] 


NHGI.KiKNCK     I'MltKH    FeDEKAL    AcT. 


910 


railroad  company  of  negligence  under  llie  section,  as  to 
defects,  i)laintif"f  must  i)rove  the  existence  of  the  defect 
comi)lained  of;  that  it  was  a  defect  of  such  a  character 
as  to  cause  its  existence  to  be  a  negligent  failure  on  the 
part  of  the  defendant;  and  tliat  it  was  the  proximate 
cause  of  tlie  injury.''  In  the  PTorton  case,  cited  supra, 
which  is  the  leading  case  construing  the  first  section  of 
the  federal  Act,  defining  when  a  can-ier  by  railroad  is 
liable,  the  i)laintiff  brought  suit  under  tlie  federal  act 
in  a  state  court  in  North  Carolina.  The  statute  of 
North  Carolina  ]>i()\ided  that  "any  servant  or  employe 
of  any  railroad  company  operating  in  this  state  who 
shall  suffer  injury  to  his  person,  or  the  personal  repre- 
sentative of  any  such  servant  or  employe  who  shall 
liave  siiffered  death  in  the  course  of  his  services  or  em- 
])loyment  with  such  company  by  tlie  negligence,  care- 
lessness or  incompetence  of  any  other  servant,  employe 
or  agent  of  the  company,  or  by  any  defect  in  the  ma- 
chinery, wa^^s  or  appliances  of  the  company,  shall  be  en- 
titled to  maintain  an  action  against  such  company." 
Notwithstanding  the  fact   that   the   plaintiff   was    suing 


land,  152  C.  C.  A.  51,  239  Fed.  1,  15 
N.  C.  C.  A.  402;  Coal  &  Coke  Co. 
V.  Deal,  145  C.  C.  A.  490,  231  Fed. 
604,  citing  Roberts,  Injuries  to  In- 
terstate Employes: 

Arkansas.  Kansas  City  South- 
ern R.  Co.  V.  Livesay,  118  Ark. 
304,  177  S.  W.  875. 

Oklahoma.     St.  Smith   &  W.  R. 

Co.  V.  Holc'ombe,  Okla.  , 

158  Pac.  633. 

South  Carolina.  Mulligan  v.  At- 
lantic Coast  Line  R.  Co.,  104  S.  C. 
173.  88  S.  E.  445;  Thornton  v.  Sea- 
board Air  Line  Ry..  98  S.  C.  348. 
82  S.  E.  433. 

Washing'ton.  Toler  v.  Northern 
Pac.  R.  Co.,  94  Wash.  360,  162  Pac. 
538. 

West  Virginia.  Hull  v.  Virginian 
R.  Co.,  78  W.  Va.  25.  88  S.  E. 
1060. 


6.  United  States.  Seaboard  Air 
Line  Ry.  v.  Moore,  228  U.  S.  433. 
57  L.  Ed.  907,  33  Sup.  Ct.  580,  3 
N.  C.  C.  A.  812. 

Georgia.  Charleston  &  W.  C.  R. 
Co.  V.  Brown,  13  Ga.  App.  744,  79 
S.  E.  932. 

Idaho.  Neil  v.  Idaho  &  W.  N.  R. 
R..  22  Idaho  74,  125  Pac.  331. 

Iowa.  McCoullough  v.  Chicago  R. 
I.  &  P.  R.  Co.,  160  Iowa  524,  47  L. 
R.  A.    (N.  S.)   23.  142  N.  W.  67. 

Kentucky.  Helm  v.  Cincinnati. 
N.  O.  &  T.  P.  R.  Co.,  156  Ky.  240, 
160  S.  W.  945;  Long  v.  Southern 
R.  Co.,  in  Kentucky,  155  Ky.  286, 
159  S.  W.  779:  South  Covington 
&  C.  St.  R.  Co.  V.  Finan's  Adm'x, 
153  Ky.  340,  155  S.  W.  742. 

Minnesota.  Owens  v.  Chicago,  G. 
W.  R.  Co.,  113  Minn.  49.  128  N. 
W.  1011. 


920  Injueies  to  Interstate  Employes.         [^  528 

solely   under  the  national   statute,   tlie   trial   court   in- 
structed the  jury  on  the  theory  that  this  statute  govern- 
ed   in   determining   negligence   under    the    federal    act. 
Upon  the  issue  of  defendant's  negligence,  the  charge  to 
the  juiy  was  in  part  as  follows:     ''It  is  the  duty  of  the 
defendant   to   provide  a   reasonably   safe  place   for   the 
plaintiff  to  work,  and   to  furnish   him   with    reasonably 
safe  appliances  with  which  to  do  his  work."     Another 
instruction  given  was:  "If  you  find  from  the  evidence 
that  it  (the  locomotive  engine)  was  turned  over  to  him 
without  the  guard,  and  if  you  further  find  from  the  evi- 
dence that  the  guard  was  a  proper  safety  provision  for 
the  use  of  that  guage,  and  that  it  was  unsafe  without  it, 
then  the  defendant  did  not  furnish  him  a  safe  place  and 
a  safe  appliance  to  do  his  work,  and  if  it  remained  in 
that    condition    it    was    continuing    negligence    on    the 
part  of  the  defendant,  and  if  he  was  injured  in  con- 
sequence thereof,  if  you  so  find  by  the  greater  weight 
of    the    evidince,    you    should    answer    the    first    issue 
'Yes.'  "  Condemning  these  instructions  as  being  improper 
under  the  federal  act,    Mr.  Justice  Pitney,  for  the  court, 
said:    "And   in   various    other    forms    the    notion    was 
expressed  that  the  duty  of  defendant  was  absolute  with 
respect  to  the  safety  of  the  place  of  work  and  of  the  ap- 
pliances  for  the   work.      ...     In   these  instructions 
the  trial  judge  evidently  adopted  the  same  measure  of 
responsibility   respecting   the   character   and    safe   con- 
dition of  the  place  of  work,  and  the  appliances  for    the  do- 
ing of  the  work,  that  is  prescribed  by  the  local  statue. 
But  it  is  settled  that  since  Congress,  by  the  act  of  1908, 
took  possession  of  the  field  of  the  employes'  liability  to 
employes  in   interstate   transportation  by  rail,    all    state 
laws   upon   the    subject   are    superseded.      Second   Em- 
ployers'Liability  Cases,  233  U.  S.  1,  55.    .    .    .    It  was 
the  intention  of  Congress  to  base  the  action  upon  negli- 
o-ence  only,  and  to  exclude  responsibility  of  the  carrier 
to    its  employes  for  defects  and  insuflficiences  not(  attribu- 
table to  negligence.     The  common  law  rule  is  that  an 
employer  is  not  a  guarantor  of  the  safety  of  the  place  of 
work  or  of  the  machinery  and  appliances  of  the  work; 


^  529]  Negligence  Under  Federal  Act.  921 

the  extent  of  its  duty  to  its  employes  is  to  see  that 
ordinary  care  and  prudence  are  exercised,  to  tlie  end 
tliat  the  place  in  which  the  work  is  to  be  preforaied 
and  the  tools  and  appliances  of  the  work  may  be  safe 
for  the  workman.  Hough  v.  Railroad  Co.,  100  U.  S.  213, 
217;  AVashington  &  Georgetown  Railroad  Co.  v.  McDade, 
135  U.  8.  554,  570;  Choctaw,  Oklahoma  &  Gulf  R.  R.  Co. 
V.  McDade,  191  U.  S.  64,  G7.  To  hold  that  under  tlie 
statute  the  railroad  company  is  liable  for  the  injury  or 
death  of  an  employe  resulting  from  any  defect  or  in- 
sufhciency  in  its  cars,  engines,  appliances,  etc.,  however 
caused,  is  to  take  from  the  act  the  words  'due  to  its 
negligence.'  The  plain  effect  of  these  words  is  to  con- 
dition the  liability  upon  negligence;  and  had  there 
been  doubt  before  as  to  the  common  law  rule,  certainly 
the  Act  now  limits  the  responsibility  of  the  company 
as  indicated.  The  instructions  above  quoted  imposed  up- 
on the  employer  an  absolute  responsibility  for  the  safe 
condition  of  the  appliances  of  the  work,  instead  of 
limiting  the  responsibility  to  the  exercise  of  reasonable 
care.  In  effect,  the  jury  was  instructed  that  the  ab- 
sence of  the  guard  glass  was  conclusive  evidence  of 
defendant's  negligence.    In  this  there  was  error." 

§  529.  Negligence  need  not  be  Proven  when  Viola- 
tion of  Safety  Appliance  Act  is  Cause  of  Injury.  In  all 
actions  under  the  Federal  Employ  its'  Liability  Act, 
where  the  cause  of  injury  or  death  is  shown  to  have  been 
due  to  any  violation  of  the  several  sections  of  the 
Federal  Safety  Appliance  Act,  the  plaintiff  is  not  re- 
quired to  show  negligence,  for,  as  now  construed  by  the 
courts,  the  Safety  Appliance  Act  imposes  an  absolute 
duty  ui)on  the  carrier  to  comply  with  the  terms  thereof 
in  the  equipment  of  its  cars,  and  if  any  failure  to  com- 
ply with  the  law  is  the  proximate  cause  of  a  death  or  in- 
jury, the  carrier  is  absolutely  and  unconditionally  liable 
without  regard  to  the  question  whether  the  defect  was 
or  was  not  due  to   negligence,  or  could   have   been   dis- 


922 


Injuries  to  Inteestate  Employes.         [§  529 


covered  by  reasonable    diligence."     In  otlier   words,  the 
carrier  is  liable  if  any  violation  of  the  Safety  Appliance 


7.  United  States.  Spokane  &  T. 
E.  R.  Co.  V.  Campbell,  241  U.  S. 
497,  60  L.  Ed.  1125,  36  Sup.  Ct.  683, 
12  N.  C.  C.  A.  1083;  San  An- 
tonio &  A.  P.  R.  Co.  V.  Wagner, 
241  U.  S.  476,  60  L.  Ed.  1110,  36 
Sup.  Ct.  626;  Texas  &  P.  R.  Co. 
V.  Rigsby,  241  U.  S.  33,  60  L.  Ed. 
874,  36  Sup.  Ct.  482;  Great  North- 
ern R.  Co.  V.  Otos,  239  U.  S.  349, 
60  L.  Ed.  322,  36  Sup.  Ct.  124; 
Atchison,  T.  &  S.  F.  B.  Co.  v. 
Swearingen,  239  U.  S.  339,  60  L. 
Ed.  317,  36  Sup.  Ct.  121,  10  N.  C. 
C.  A.  778;  Grand  Trunk  West- 
ern R.  Co.  V.  Lindsay,  233  U.  S. 
42,  58  L.  Ed.  838,  34  Sup.  Ct.  581, 

Ann.  Cas.  1914C  168;  Chicago  R. 
I.  &  P.  R.  Co.  V.  Brown,  229  U. 
S.    317,    57    L.    Ed.    1204,    33    Sup. 

Ct.  840,  3  N.  C.  C.  A.  826;  Delk 
V.  St.  Louis  &  S.  F.  R.  Co.,  220 
U.  S.  580,  55  L.   Ed.  590,  31   Sup. 

Ct.  617;  Pennsylvania  Co.  v. 
United  States,  241  Fed.  824;  Over- 
street  V.  Norfolk  &  W.  R.  Co.,  151 
C.    C.    A.    501,    238    Fed.    565;     St. 

Louis  Merchants'  Bridge  Terminal 

R.  Co.  V.  Schuerman,  150  C.  C. 
A.  203,  237  Fed.  1;  Clark  v.  Erie 
R.  Co.,  230  Fed.  478. 

Florida.     Atlantic  Coast  Line  R. 

Co.,  V.  Whitney,  65  Fla.  72,  3  N. 

C.  C.  A.  812,  61  So.  179. 
Illinois.     Wagner  v.  Chicago,  R. 

I.  &  P.  R.  Co..  277  111.  114,  115  N. 

E.  201. 
Iowa.  Stearns  v.  Chicago,  R.  L 

&  P.  R.  Co.,  166  Iowa,  566,  148  N. 

W.  128. 

Kentucky.      Nashville,   C.   &    St. 

L.   Ry.  v.   Henry,  158  Ky.   88,   164 

S.    W.    310. 
Louisiana.    Lemee  v.  Texas  &  P. 

R.   Co.,  141  La.   769,   75   So.   67G. 


Minnesota.  Davis  v.  Minneapolis 
&  St.  L.  R.  Co.,  134  Minn.  369, 
159  N.  W.  802:  Cramer  v.  Chicago. 
M.  &  St.  P.  R.  Co.,  134  Minn.  61, 
158  N.  W.  796;  Hurley  v.  Illinois 
Cent.  R.  Co.,  133  Minn.  101,  157 
N.  W.  1005;  McNaney  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  132  Minn.  391, 
157  N.  W.  650;  Coleman  v.  Illi- 
nois Cent.  R.  Co.,  132  Minn.  22. 
155  N.  W.  763;  Willett  v.  Illinois 
Cent.  R.  Co.  122  Minn.  513,  4  N. 
C.  C.  A.  479,   142  N.  W.  883. 

Missouri.  Christy  v.  Wabash  R. 
Co.,  195  Mo.  App.  232,  191  S.  W. 
241;  Moore  v.  St.  Joseph  &  G.  I. 
R.  Co.,  268  Mo.  31,  186  S.  W.  1035; 
Noel  V.  Quincy,  0.  &  K.  C.  R.  Co., 

Mo.    App. ,    182    S.    W. 

787. 
Montana.     Armitage  v.  Chicago, 

M.   &    St.    P.   Ry.   Co.,  •  Mont. 

,   1G6  Pac.   301. 

New  Jersey.  Parker  v.  Atlantic 
City  R.  Co.,  87  N.  J.  L.  148,  93  Atl. 
574. 

Pennsylvania.  Whalley  v.  Phil 
adelphia  &  R.  R.  Co.,  248  Pa.  298, 
93    Atl.    1016. 

South  Carolina.  Steeley  v.  At- 
lantic Coast  Line  R.  Co.,  103  S.  C. 
102,   87   S.   E.   639. 

South  Dakota.  Fletcher  v.  South 
Dakota  C.  R.  Co.,  36  S.  D.  401, 
155   N.  W.   3. 

Virginia.  Virginia  R.  Co.  v.  An- 
drews' Adm'x,  118  Va.  482,  87  S. 
E.  577. 

Washington.  Aldread  v.  North- 
ern Pac.  R.  Co.,  93  Wash.  209,  160 
Pac.  429;  Bjornsen  v.  Northern 
Pac.  R.  Co.,  84  Wash.  220  146  Pac. 
575. 

Wisconsin.  Calhoun  v.  Great 
Northern  R.  Co.,  162  Wis.  264,  156 
N.   W.   198. 


<§>  529]  Negligence    Under  fEUEHAL  Act.  923 

Act  causes  an  iiijui-y  even  tliou^li  tlie  dofoct  could  liavo 
boon  ])reventod  by  any  do,£ri*co  of  no<i:li^onco.  IMio  stat- 
ute does  away  witb  tlio  coniiiioii  law  rule  niakint,''  lial)il- 
ity  depend  upon  negligence,  and  makes  tbe  caii'K'r  ab- 
solutely liable  for  any  injury  resulting  in  tlic  usf  of  a 
car  not  e(pii)>ped  as  ])rovided  by  that  act,  or  by  the 
oj-ders  of  tlic  Interstate  Commerce  Commission  made 
]>ui-suant  to  the  autlionty  therein  delegated  to  that 
body.**  "It  is  ai'gued",  said  ^\y.  Justice  Pitney,^  "that  in 
actions  based  upon  the  Em])loyers'  Liability  Act  the  de- 
fendant can  not  be  held  liable  without  evidence  of 
negligence,  Reaboard  Aii-  Line  v.  Horton,  233  U.  S.  492, 
501,  being  cited.  But  in  that  case,  as  the  opinion  shows 
(P.  507),  there  was  no  question  of  a  violation  of  any 
provision  of  the  Safety  Appliance  Act;  and  in  what  was 
said  (P.  501)  respecting  the  necessity  of  showing  neg- 
ligence, reference  was  had  to  causes  of  action  indeiDend- 
ent  of  that  Act.  The  Employers'  Liabilit^^  Act,  as  its 
section  4  very  clearly  shows,  recognizes  that  rights  of 
action  may  arise  out  of  the  violation  of  the  Safety  Ap- 
pliance Act.  As  was  stated  in  Tex.  &  Pac.  Ey.  v.  Rigsby, 
ante,  pp.  33,  39,  'A  disregard  of  the  command  of  the 
statute  (Safety  Ai)i)licance  Act)  is  a  wrongful  act,  and 
where  it  results  in  damage  to  one  of  the  class  for  whose 
especial  benefit  the  statute  was  enacted,  the  nglit  to  re- 
cover the  damages  from  the  party  in  default  is  implied.' 

"The    act    contains   an    absolute  S.  559,  55  L.  Ed.  582,  31  Sup.  Ct. 

command.     It   is  not   satisfied   by  612;     St.  Louis,  I.  M.  &  S.  R.  Co. 

the  use  of  reasonable  care  to  ecjuip  v.  Taylor,  210  U.  S.  281,  52  L.  Ed. 

cars  as  it  directs.     The  equipment  1061.    28    Sup.    Ct.    G16;     Atlantic 

must  be  in  place  and  in  an  oper-  Coast  Line  R.  Co.  v.  United  States, 

ative  condition  if  the  car  is  used  94  C.  C.  A.  35,  168  Fed.  175;  United 

in  interstate  commerce."  Moore  v.  States    v.    Atchison  T.    &    S.    F. 

St.  Joseph  &  G.  I.  R.  Co.,  268  Mo.  R.     Co.,     90     C.     C.     A.    327    163 

31,  186  S.  W.  1035.  Fed.     517;      Brinkmeier     v.     Mis- 

8.     Chicago,  R.  L  &  P.  R.  Co.  v.  souri  Pac.  R.  Co.,  81  Kan.  101,  105 

Brown,   229   U.   S.  317,   57  L.   Ed.  Pac.   221;     s.  c,  224  U.  S.  268,  56 

1204,   33   Sup.   Ct.   840,   3  N.   C.   C.  L.   Ed.   758,   32   Sup.   Ct.   412. 
A.  826,  aff'g  107  C.  C.  A.  300,  185  9.     San  Antonio  &  A.  P.  R.  Co. 

Fed.     80:        Chicago,      B.     Q.    R.  v.  Wagner.  241  U.  S.  476,  60  L.  Ed. 

Co.     V.     United      States,     220     U.  1110.  36  Sup.  Ct.  626. 


924  Injuries  to  Inteestate  Employes.         [^  529 

If  this  Act  is  violated,  the  question  of  negligence  in  the 
general  sense  of  want  of  care  is  immaterial.  241  U.  S. 
43,  and  cases  there  cited.  But  the  two  statutes  are  in 
pari  maieria,  and  where  tlTe  Employers'  Liability  Act 
refers  to  'any  defect  or  insufficiency,  due  to  its  negli- 
gence, in  its  cars,  engines,  appliances,  etc.,  it  clearly  is 
tlie  legislative  intent  to  treat  a  violation  of  the  Safety 
Appliance  Act  as  'negligence'  what  is  sometimes  called 
negligence  per  se." 

§  530.  Negligence  of  Human  Agencies  Not  Limited 
to  Fellow  Servants  as  Construed  under  Common  Law. 
Under  the  first  section  of  the  federal  act  a  carrier  by 
railroad  is  liable  for  the  negligence  of  any  of  its  officers 
or  employes  and  the  statute  does  not  confine  the  negli- 
gent acts  of  employes  for  which  it  is  liable,  to  such  ser- 
vants as  under  the  common  law  were  construed  to  be 
fellow  servants  of  the  injured  employe."  In  the  case  of 
DeAtley  v.  Chesapeake  &  0.  Ry.  Co.,  cited  in  the  notes, 
a  brakeman  on  a  train  carrying  interstate  shipments, 
was  ordered  to  leave  the  train  at  a  certain  signal  tower 
to  get  the  train  orders  for  the  movement  of  the  train 
and  while  returning  with  the  orders  he  attemped  in  the 
usual  and  customary  way  to  get  on  the  train  while  it  was 
moving,  but  missed  his  footing,  fell  and  was  injured. 
In  his  ]3etition  under  the  federal  act  he  alleged,  among 
other  things,  that  the  defendant  was  negligent  in  failing 
to  adopt  rules  requiring  all  trains  to  be  stopped  so  that 
brakemen  would  not  be  compelled  to  get  on  them  while 
in  motion.  It  was  contended  by  the  railroad  company 
that  this  failure  to  adopt  such  a  rule  was  not  such  a 
negligent  act  as  was  covered  by  the  Employers'  Liability 
Act  for  the  reason  that  it  was  not  the  negligent  act  of  a 
fellow  servant;  but  the  court  held  that  the  words  in  the 
statute  "officers,  agents  and  employes"  were  not  limited 
to  fellow  servants  as  construed  under  the  common  law 
doctrines,  but  included  any  and  all  agents  or  officers  of 

10.   De  Alley  v.  Chesapeake  &  O.       Ry.  Co.,  201  Fed.  591. 


^  531]  NiiciUciENCE  Under  Federal  Act.  925 

the  company  whose  duly  it  was  to  adopt  and  promulgate 
rules  governing  the  operation  of  trains.  The  court  said: 
''It  (defendant)  can  only  act  through  officers,  agents, 
and  employes,  and  tlie  failui-e  to  look  after  such  condi- 
tion properly  is  necessarily  negligence  on  the  part  of 
officers,  agents,  and  em])loyes  to  whom  it  lias  intrusted 
the  duty  of  looking  thereafter.  The  two  classes  seem, 
therefore,  to  overlap,  but  I  do  not  think  that  one  is 
justified  in  limiting  the  language  of  the  first  class  to  pre- 
vent overla])ping,  which  would  he  done  by  limiting  the 
first  class  to  the  negligence  of  servants  for  which  the 
common  canier  is  not  liable  at  common  law,  leaving  the 
second  class  to  cover  the  negligence  of  servants  for 
whom  it  is  in  such  cases  as  it  covers.  ...  It  seems 
to  me  that  it  was  the  intent  and  purpose  of  the  act  to 
cover  every  negligence  for  which  a  common  carrier  en- 
gaged interstate  commerce  might  be  liable  to  its  em- 
ployes in  such  commerce." 

§  531.  Negligence  of  Common  Carrier  Need  Not 
be  Shown  by  Direct  or  Positive  Proof.  Direct  or  pos- 
itive proof  is  not  required  to  show  that  a  negligent  act 
or  defect  was  the  cause  of  an  injury  to,  or  death  of,  an 
employe  engaged  in  interstate  commerce. ^^  The  manner 
and  circumstances  of  the  occurrence,  and  all  the  ac- 
companying surroundings,  as  proven,  may  be  examined 
in  order  to  ascertain  and  determine  whether  or  not  an 
inference  that  a  negligent  defect  caused  the  death,  was 
a  reasonable  one.^^  If  the  facts  and  circumstances  are 
as  consistent  with  the  defendant's  theory  as  with  the 
plaintiff's  theory  no  case  is  made  for  the  jury;  for,  when 
the  cause  of  an  accident  is  left  to  conjecture,  or  may  as 

11.     Louisville   &   N.   R.   Co.   v.  y.  Atlantic  Coast  Line  R.  Co.,  104 

Allen-s  AdmT,  174  Ky.  736,  192  S.  g    ^    ^^g^  33  g    ^    ^^, 

W.    863;      Swartwood    v.    Lehigh  /-.    p   <->    r>    r. 

Valley  R.  Co.,  169  N.  Y.  App.  Div.  '^     C^^°^^"^'  ^-  *  ^^  «•  ^^^  ^'• 

759.   155  N.  Y.  Supp.   778;     Steele  ^troup,  152  C.  C.  A.  125,  239  Fed. 

V.  Atlantic  Coast  Line  R.  Co.,  103  75;    Strother  v.  Chicago,  B.  &  Q. 

S.  C.  102,  87  S.  E.  639;    Mulligan  R.  Co.    (Mo.),  188   S.  W.   11^2. 


926  Injuries  to  Interstate  Employes.         [§  531 

reasonably  be  attributed  to  a  condition  for  wliicli  no 
liability  attaches,  tbe  i^laintiff  is  not  entitled  to  re- 
cover.^^^  But  if  the  plaintiff  shows  facts  and  circum- 
stances from  which  negligence  of  the  defendant,  and  the 
causation  of  the  accident  by  negligence,  may  be  reason- 
ably and  legitimately  inferred,  the  cause  should  be  sub- 
mitted to  the  jpvy.'* 

§  532.  Judicial  Definition  of  Negligence.  The  term 
''negligence"  has  been  defined  by  tlie  national  Supreme 
Court  to  be  the  failure  to  do  what  a  reasonable  and 
l)rudent  person  would  ordinarily  have  done  under  the 
circumstances  of  the  situation,  or  doing  what  such  a  per- 
son under  the  existing  circumstances  would  not  have 
done.''  The  essence  of  the  fault  may  lie  in  omission  or 
commission.  The  duty  is  di'?.tated  and  measured  by  tlie 
exigencies  of  the  situation.     Negligence   has  always  re- 


13.  United  States.  Smith  v.  Penn- 
sylvania R.  Co.,  151  C.  C.  A.  277, 
239  Fed.  103,  15  N.  C  C.  A.  371, 

Georgia.  Landrum  v.  Western  i' 
A.  R.  Co.,  146  Ga.  88,  90  S.  E. 
710;  Louisville  &  N.  R.  Co.  v. 
Kemp,   140  Ga.   657,  79   S.  E.  558. 

Kentucky.  Louisville  &  N.  R.  Co. 
V.  Holloway's  Adm'r,  163  Ky.  125, 
173  S.  W.  343;  Cincinnati,  N.  O 
&  T.  P.  R.  Co.  V.  Goldston,  156  Ky. 
410,  161  S.  W.  246. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Whitacre,  124  Md.  411,  92 
Atl.    1060. 

Micliigan.  Miller  v.  Michigan 
Cent.  R.  Co.,  185  Mich.  432,  152  N 
W.   235. 

Minnesota.  Thompson  v.  Min- 
neapolis &  St.  L.  R.  Co.,  13'^  Minn. 
203,  158  N.  W.   42. 

North  Dakota.  M«nson  v.  Great 
Northern  K.  Co.,  o.  M.  D.  641. 
155   N.   W.   32. 

West  Virginia.  Hull  v.  Virginian 
R.  Co.,  78  W.  Va.  25,  88  S.  E.  1060. 
1060. 

14.  United  States.  Patton  v. 
Texas  &  P.  Ry.  Co.,  179  U.  S.  658, 


45   L.   Ed.   361,   21   Sup.  Ct.   275. 

Alabama.  Western  Ry.  of  Ala- 
bama v.  Mays  197  Ala.  367,  72  So. 
641. 

New  York.  V/hite  v.  Lehigh 
Valley  R.  Co.,  220  N.  Y.  131,  115 
N.  E.  439. 

South  Carolina.  Steele  v.  At- 
lantic Coast  Line  R.  Co.,  103  S. 
C.   102,  87   S.  E.  639. 

Washington.  Donaldson  v.  Great 
Northern  R.  Co.,  89  Wash.  161,  154 
Pac.  133. 

West  Virginia.  Hull  v.  Virginian 
R.    Co..    78    W.   Va.    25,    88    S.    E. 

"Plaintiff  must  prove  that  the 
death  of  his  intestate  came  from 
some  act  for  the  result  of  which 
defendant  is  liable.  It  is  not  for 
the  defendant  to  show  that  it 
came  from  some  act  for  which  it 
is  not  responsible.  The  proof  need 
not  be  direct  or  positive.  It  must 
leave  the  result  more  than  con- 
jectural." Hurley  v.  Illinois  Cent. 
R.  Co.;  133  Minn.  101,  157  N.  W. 
1005. 

15.  Baltimore  &  P.  R.  Co.  v. 
Jones,  95  U.  S.  439,  24  L.  Ed.  506. 


•^  534]  Nkcijgence  Uni>er  Fedkral  Act.  927 

latioii  to  tilt'  circuinstaiicos  in  \vl'"";li  one  is  ])la(;('d,  and 
wliat  an  ordinarily  i)nident  man  would  do  or  omit  in 
such  ('ij'CHiiislancos.^*' 

§  533.  Carrier  not  Required  to  Furnish  Latest, 
Best  and  Safest  Appliances  for  Interstate  Employes. 
Under  the  rule  adoplcd  hy  tlic  I'niied  Slates  Suiueme 
Coui't,  the  cari'ier's  duty  towards  its  interstate  emi)loyes 
is  to  exercise  ordinary  care  to  sui>ply  machinery  and  ap- 
])liances  reasonably  safe  and  suitable  for  their  use.  The 
emi)loyer  is  not  required  to  furnish  the  latest,  best  and 
safest  appliances  or  to  abandon  standard  appliances  up- 
on the  discovery  of  later  improvements  if  lliose  in  use 
are  i-easonably  safe  and  suitable. ^^ 

§  534.  Custom  or  Practice  of  Other  Railroad  not 
Conclusive  in  Determining  Exercise  of  Ordinary  Care. 
The  standard  of  duty  under  the  Federal  Act  upon  all 
common  carriers  is  ordinary  care,  that  is,  the  care  that  a 
person  of  ordinary  prudence  would  use  under  the  same 
circumstances.^^  The  custom  or  practice  of  other  car- 
riers jnsij  be  admissible  as  evidence  to  determine 
whether  ordinary  care  was  exercised  in  a  particular  case; 
l)ut  evidence  of  that  character  is  not  conclusive,  for  the 
ultimate  and  controllini^-  test  always  is,  not  what  has  been 
the  practice  of  others  in  like  situations,  but  did  the  de- 
fendant in  the  case  under  investigation  exercise  such 
care  as  a  reasonably  prudent  person  would  ordinarily 
have  exercised  in  such  a  situation 'I  The  law  does  not 
])ei"mit  whal  ouii,lit  to  have  been  done  to  be  determined 

16.  Charnock  v.  Texas  &  P.  R.  Co.  v.  Deal  145  C.  C.  A.  490,  231 
Co.,  194  U.  S.  432,  48  L.  Ed.  1U57,  Fed.  604;  Woodruff  v.  Yazoo  & 
24  Sup.  Ct.  671.  M.  V.  R.  Co.,  137  C.  C.  A.  567,  222 

17.  Chicago  &  N.  W.  R.  Co.  v.  Fed.  29;  Woodruff  v.  Yazoo  & 
Bower,  241  U.  S.  470,  60  L.  Ed.  M.  V.  R.  Co.,  127  C.  C.  A.  411,  210 
1107,   36   Sup.  Ct.   624;    Patton   v.  Fed.  849;    LouisviUe  &  N.  R.  Co.  v. 

Texas  &  P.  Ry.  Co.,  179  U.  S.  658,  Patrick,    167    Ky.    118.    ISO    S.    W. 

45    L.    Ed.    361,    21    Sup.    Ct.    275;  55. 

Washington    &    G.    R.    Co.    v.    Mc-  18.    Texas  &  P.  R.  Co.  v.  Behy- 

Dade,  135  U.  S.  554,  34  L.  Ed.  235,  mer,  189  U.  S.  468,  47  L.  Ed.  905, 

10  Sup.  Ct.  1044;    Coal  &  Coke  R.  23  Sup.  Ct.  622. 


928  Injuries  to  Inteestate  Employes.         [§  534 

in  the  particular  case  by  the  practice  of  others;  for  the 
degree  of  care  exercised  by  them  may  not  be  due,  reason- 
able or  proper,  and,  therefore,  not  ordinary  care  within 
the  meaning  of  the  law/^  The  law  does  not  permit 
reason  and  common  sense  to  lose  their  sway  because, 
through  ignorance,  inattention  or  selfishness,  an  un- 
reasonable practice  prevails.-"  In  an  action  under  the 
Federal  Employers'  Liability  Act  for  the  death  of  an 
engineer  who  was  killed  by  the  collapse  of  a  bridge,  the 
trial  court  was  requested  to  instruct  the  jury  that  if  the 
carrier  had  caused  the  bridge  to  be  inspected  a  short 
while  before  the  collapse  by  experienced  employes,  and 
that  the  inspection  was  such  as  was  ordinarily  and 
customarily  made  of  bridges  of  like  character  by  other 
well  regulated  railroads  in  the  same  state,  and  that  such 
inspection  did  not  disclose  the  defects  alleged  in  the  com- 
plaint, the  carrier  discharged  its  full  dut3^  The  action 
of  the  trial  court  in  refusing  this  instruction  was  sus- 
tained by  the  Circuit  Court  of  iVppeals.^^  The  appellate 
court  held  that  while  testimony  as  to  inspections  by 
other  railroads  was  admissible  as  evidence  to  be  con- 
sidered by  the  jury  the  refused  instruction  confused  the 
controlling  standard  of  ordinary  care  with  what  is  only 
evidence  of  it. 

§  535.  Decisions  of  National  Courts  Control  in  De- 
termining Negligence — Contrary  Rulings.  Before  the 
passage  of  the  Federal  Employers'  Liability  Act,  state 
courts  as  well  as  the  federal  courts  had  uniformly  held, 
that  in  construing  and  interpreting  all  federal  statutes 
the  state  courts  were  controlled  by  the  decisions  of  the 
national  courts.^^    Adopting  the  same  principle,  in  actions 

19.     Wabash    Ry.     Co.    v.    Mc-  20.     Chicago  Great  Western  R. 

Daniels,  107  U.  S.  454,  27  L.  Ed.       Co.  v.  McDonough,  88  C.  C.  A.  517, 


605,  2  Sup.  Ct.  932;  Chicago,  M. 
&  St.  P.  R.  Co.  V.  Moore,  92  C.  C. 
A.  357,  166  Fed.  663,  23  L.  R.  A. 


161   Fed.   657. 

21.  Midland  Valley  R.  Co.  v. 
Bell,  155  C.  C.  A.  391,  242  Fed. 
803. 


(N.  S.)    962;    Rickerd  v.  Chicago,  £2.     lUinois.     Gilmore  v.   Sapp, 

St.  P.  M.  &  O.  R.  Co.,  73  C.  C.  A.        100  111.  297;     Elwell  v.  Hicks,  180 
139,  141  Fed.  905.  i  HI.  App.   554. 


•^  535]  Nj-:gLlIgence  Under  Feuehal  Act. 


929 


prosecuted  in  tlie  courts  of  one  state  for  injuries  occur- 
ring in  anotlier  state  the  construction  wliich  tlie  courts  of 
the  latter  state  has  placed  upon  common  law  jninciples 
of  negligence  has  uniformly  been  followed  hy  tlie  courts 
where  the  actions  were  prosecuted  although  dilTerent 
from  their  own  interpretation  and  construction  of  tlie 
common  law.-'  Hut  in  dctcnniiiiiig  when  a  canici-  by 
railroad  is  guilty  of  negligence  under  the  federal  act, 
at  least  two  courts  carved  out  an  exception  to  the 
general  law  that  the  decisions  of  the  national  courts 
control  in  construing  the  state  statute.-^  In  Louisville 
&  N.  R.  Co.  V.  Johnson,  cited  in  the  notes,  the  courts  held 
tiiat  in  determining  negligence  under  the  national  stat- 
ute, if  the  evidence  is  sufficient  to  support  a  verdict 
under  the  state  law,  it  is  sufficient  under  the  federal 
statute.     The  language  of  the  court   in  the   opinion   on 


Indiana.  First  Nat.  Bank  of 
Richmond  v.  Turner,  154  Irid.  456, 
57  N.   E.   110. 

Missouri.  Beekman  Lumber  Co 
V.  Acme  Harvester  Co.,  215  Mo.  221 
114  S.  W.  1087;  Haseltine  v.  Cent- 
ral Nat.  Bank,  155  Mo.  66,  56  S 
W.  895. 

Ohio.  Board  of  Trustees  v.  Cup 
pett,  52  Ohio  St.  507,  40  N.  E 
792. 

Texas.  Pecos  &  N.  T.  R.  Co.  v 
Cox,  105  Tex.  40,  143  S.  W.  606; 
Bank  of  Garrison  v.  Malley,  103 
Tex.  562,   131  S.  W.  1064. 

Washington.  Hall  v.  Hall.  41 
Wash.  186,  111  Am.  St.  Rep.  lOlG, 
83  Pac.  108. 

23.  Georgia.  White  v.  Seaboard 
Air  Line  Ry.,  14  Ga.  App.  139,  80 
S.  E.  667. 

Iowa.  Brewster  v.  Chicago  &  N. 
W.  Ry.  Co..  114  Iowa  144.  89  Am. 
St.   Rep.  348,  86   N.  W.  221. 

Maryland.  State  ex  rel.  Allen 
V.  Pittsburgh  &  V.  R.  Co.,  45  Md. 
41. 


Minnesota.  Koecher  v.  Minne- 
apolis, St.  P.  &  S.  S.  M.  R.  Co., 
122  .Minn.  458,  142   N.   W.   874. 

Mississippi.  Pullman  Palace  car 
Co.  V.  Lawrence,  74  Miss.  782,  22 
So.  53. 

Missouri.  Chandler  v.  St.  Louis 
&  S.  F.  R.  Co.,  127  Mo.  App.  34, 
106  S.  W.  553;  Root  v.  Kansas 
City  Southern  R.  Co..  195  Mo.  348. 
6  L.  R.  A.  (N.  S.)  212n,  92  S.  W. 
621. 

Ohio.  Alexander  v.  Pennsylvania 
Co.,  48  Ohio  St.  623,  30  N.  E.  69. 

Texas.     Western  U.  Tel.   Co.  v. 

White,  Tex.   Civ.  App.  , 

162  S.  W.  905. 

24.  Louisville  &  N.  R.  Co.  v. 
Winkler,  162  Ky.  834,  9  N  C.  C. 
A.  146,  173  S.  W.  151;  Louisville 
&  N.  R.  Co.  V.  Johnson's  Adm'x, 
161  Ky.  824,  171  S.  W.  847;  Helm 
V.  Cincinnati,  N.  O.  &  T.  P.  R.  Co., 
156  Ky.  240,  160  S.  W.  945;  Gray 
V.  Southern  R.  Co.,  167  N.  C.  433. 
83  S.  E.  849. 


1    Coutrol    Curriers    50 


930  Injuries  to  Interstate  Employes.         [^  535 

this  point  is  as  follows:  ''In  administering  the  Federal 
Employers'  Liability  Act  in  our  courts,  we  think  the 
practice  and  procedure  followed  in  the  trial  of  common- 
law  actions  generally  should  be  observed  in  the  trial  of 
cases  arising  imder  this  act.  C.  &  0.  R.  Co.  v.  Kelly,  160 
Ky.  296,  169  S.  W.  736.  In  other  words,  except  in  so 
far  as  the  act  itself  modifies  or  changes  rules  of  practice 
and  procedure  or  substantive  law,  cases  arising  under 
the  act  should  be  heard  and  determined  in  the  state 
courts  in  the  same  manner  as  would  like  cases  arising 
under  the  law  prevailing  in  this  state.  If  the  evidence 
in  a  case  heard  and  determined  under  this  act  would  be 
sufficient  to  take  the  case  to  the  jury  and  support  the 
verdict  if  the  suit  had  been  brought  under  the  state  law, 
it  would  be  sufficient  to  take  the  case  to  the  jury  and 
support  the  verdict  if  it  was  brought  under  the  federal 
act."  It  is  true  that  the  law  of  procedure  of  the  state 
where  the  action  is  pending  governs  in  all  actions  under 
the  Federal  Act ;^^  but  as  to  "substantive  law,"  re- 
ferred to  in  this  opinion,  the  decision  is  apparently  in 
conflict  with  prior  rulings  of  the  national  Supreme 
Court.-®  In  the  McWhirter  case,  cited,  it  was  specifically 
held  that  the  question  whether  a  demurrer  to  the 
evidence  should  have  been  sustained  or  overruled,  was  a 
federal  question  to  be  determined  in  conformity  with  the 
rulings  of  the  United  States  Supreme  Court.  In  the 
Horton  case,  also  cited  in  the  notes,  the  trial  court,  on  the 
question  of  negligence,  in  instructing  the  juiy,  for- 
mulated the  charge  in  conformity  with  the  law  of  the 
state.  This  was  declared  erroneous,  the  court  saying: 
''In  these  instructions  the  trial  judge*  evidently  adopted 
the  same  measure  of  responsibility  respecting  the  charac- 
ter and  safe  condition  of  the  place  of  work,  and  the  ap- 
pliances for  the  doing  of  the  work,  that  is  prescribed  by 

25.  Section  427,  supra.  A.    834    L.    R.    A.    1915C.    1,    Ann. 

26.  Seaboard  Air  Line  R.  Co.  &  S.  R.  Co.  v.  McWhirter,  229 
V.  Horton,  233  U.  S.  492,  58  L.  Ed.  U.  S.  265,  57  L.  Ed.  1179,  33  Sup. 
1062,  34  Sup.  Ct.  635,  8  N.  C.  C.  Ct.   858. 

Gas.   1915B  475;    St.   Louis,   I.  M. 


§  535]  NwjLKiENcE  Under  Fei>p:ral  Act.  931 

the  local  statute.     ]^>iil   it  is  settled  that  since  Congress, 
by  the  Act  of  IDOS,  took  jtossession  of  the  field  of  the  em- 
ployers' liability  to  employes  in  interstate  transportation 
by  rail,  all  state  laws  upon  the  subject  are  superseded." 
In  TIelm  v.  Cincinnati,  N.  O.  &  T.  V.  H.  (\>.,  cited  in  the 
notes,  the  court  held  that  since  tlic  federal  act  did  not 
undertake   to  define   neo^lio-ence,   and    in  no   way   limited 
the  application  of  tlie  common  law  rule  on  the  subject, 
and,  since  there  was  no  federal  common  law,  it  was  the 
common  law  of  the  state  where  the  accident  occurred 
to  which  the  court  must  look  in   determining  whether 
the    acts    complained    of    amount    to    negligence.      Tn 
Hawkins  v.   St  Louis  &  S.  F.  R.  Co.,"  it  was  held  that 
since  Congress,  in  passing  the  Federal  Employers'  Lia- 
bility Act,   used   such   terms   as   "negligence,"     "con- 
tributoiy  negligence"  and   "assumption   of  risk,"  and 
did    not  undertake  to  define   them,  it   therefore   followed 
that  Congress  intended  for  the  statute,  when  called  into 
operation,  to  be  applied  according  to  the  construction  of 
those  common  law  terms  by  the  various  state  courts. 
If  the  doctrine  announced  in  these  last  two  cases  had 
been  followed  in  the  application  of  the  federal  act,  then, 
it  would  often  result  that  an  act  would  be  negligent  in 
one  state  and  not  negligent  in  another  state  under  the 
same  law,  tliat  is,  the  federal  act.     Such  discrimination 
would   defeat  one  of  the  main  objects  of  the  national 
statute — one  unifomi  rule  of  liability  in  all  the  states 
where  a  carrier  by  railroad  is  engaged  in  interstate  com- 
merce to  its  servants  while  employed  in  such  commerce. 
It  is  true  that  prior  to  the  enactment  of  the  Federal 
Employers'  Liability  Act,  there  was  no  federal  common 
law;  but  it  has  been  held  by  the  United  States  Supreme 
Court  in  the  Korton  case,  cited  svpra.  that  Congress  in 
passing  the  Federal  Em]>loyers'   T^iabiHty  Act,    adopted 
the  rules  and  princi]^les  of  the  common  law  in  detennin- 
ing  when  a  carrier  was  negligent,  under  the  first  section 
of  the   act,   with   the   exception  that   the   common   law 
fellow-servant  doctrine  was  abolished.     It  would  seem, 

27.      180    Mo.    App.    201,    174    S.        W.   129. 


932  Injuries  to  Interstate  Employes.         [§  535 

therefore,  that  the  decisions  of  the  national  courts  in 
constniing-  the  national  statute  should  control  in  deter- 
mining negligence  under  the  act  and  in  construing  and  in- 
terpreting the  common  law  principles  concerning  negli- 
gence so  that  there  may  be  one  rule  of  liability  under 
this  law,  when  applicable,  in  all  state  courts.^^  Cer- 
tainly there  must  be  some  controlling  authority  in  de- 
temiining  negligence  under  the  act  and  if  these  questions 
are  left  to  be  determined  according  to  the  admittedly 
conflicting  decisions  of  the  courts  of  the  several  states, 
whose  rulings  are  paramount  and  exclusive  in  their  own 
jurisdiction,  the  question  as  to  when  a  carrier  is  negli- 
2-ent  under  the  federal  statute  would  become  a  matter  of 
the  geography  of  the  states  and  not  of  a  one  supreme 
law  applying  uniformly  within  its  exclusive  domain. 
Eecognizing  the  inapplicability  of  state  laws  in  de- 
termining negligence  under  the  federal  statute,  the  ken- 
tucky  Court  of  Appeals  in  another  case,  and  also  the 
Georgia  Court  of  Appeals  held  that  a  law,  providing 
that  upon  proof  of  an  accident  the  presumption  of 
negligence  arises,  did  not  control  in  an  action  for 
damages  under  the  federal   statute.^" 

28.  Florida.    Louisville  &  N.  R.       application     of     the     state     rule, 

Co.   V.  Rhoda, Fla.  ,  74       Judge    Brown,    in'    the    minority 

So.   19.  opinion,   said:    "In  administering 

Kansas.     Roebuck  v.   Atchison,  the    Federal    Liability    Act,    the 

T.  &  S.  P.  R.  Co.,  99  Kan.  544,  L.  state  courts  are  bound  by  the  con- 

R.  A.  1917E  741,  162  Pac.  1153.  struction    and     decisions    of    the 

Minnesota.      Maijala    v.     Great  federal    courts.      Since    Congress 

Northern   R.   Co.,    133   Minn.   301,  has  taken  possession  of  the  field 

158  N.  W.  430.  of  employers'  liability  to  employes 

Vermont.    Robie  v.  Boston  &  M.  in    interstate    transportation    by 

R.    R.,    . Vt.    ,    100    Atl.  rail,  all  state  laws  upon  the  sub- 

925.  ject    are    superseded.      8eaboard 

29.  Charleston  &  W.  C.  R.  Co.  Air  Line  Ry.  Co.  v.  Horton,  233 
V.  Brown,  13  Ga.  App.  744,  79  S.  U.  S.  492,  34  Sup.  Ct.  635,  58  L. 
E.  932;  South  Covington  &  C.  Ed.  1062;  Mondou  v.  Ry.  Co.,  223 
St.  R.  Co.  V.  Finan's  Adm'x,  153  U.  S.  1,  32  Sup.  Ct.  169,  56  L. 
Ky.  340,  155  S.  W.  742.  Ed.   327    (1  N.  C.  C.  A.  875),   38 

In    Gray    v.    Southern    R.    Co.,  L.   R.   A.    (N.    S.)    44.     Not  only 

167  N.  C.  433,  83  S.  E.  849,  which  have  state  statutes  been  made  in- 

was     reversed     by     the     United  applicable,   but   the   common   law 

States  Supreme  Court  because  of  as     well,     where    a     construction 


§  53G]  Negogence  Under  Federal  Act.  933 

536.  Conflicting-  Rulings  Finally  Eliminated  by 
Controlling  Decisions  of  National  Supreme  Court.  Most 
of  llic  (Icclsioiis  discussed  in  llie  rore^oiu^  jjaragrapli 
were  delivered  before  tlie  national  Supreme  Court,  in  a 
series  of  cases  durin^^  the  year  1915,'°  held  that  when 
Congress  legislates  and  takes  possession  of  a  field  within 
its  power  over  interstate  commerce,  not  only  state  stat- 
utes applying  to  the  same  subject  are  tliereby  abrogated 
and  inoperative,  but  also  the  common  law  doctrines  pro- 
mulgated by  state  courts  as  well,  where  a  construction 
has  been  placed  upon  tlie  common  law  liy  ilie  state 
courts,  differing  from  that  of  the  national  courts.  In 
other  words,  all  federal  laws  relating  to  the  subject 
matter  of  interstate  commerce  must  be  construed  in  the 
light  of  the  decisions  of  the  federal  courts."  In  all 
actions  under  the  Employers'  Liability  Act,  the  applica- 
ble principles  of  the  common  law,  as  interpreted  and  ap- 
plied in  the  federal  courts,  control  to  the  exclusion  of 
common  law  principles  as  applied  and  interpreted  by 
state  courts,  if  in  conflict  with  the  decisions  of  the 
national  courts;'^     for,  when   Congress  enacts   a  statute 

has   been   placea   upon   it   by   the  In    proceedings    brought    under 

state    courts    differing   from    that  the    Federal    Employers'    Liability 

of  the  federal  courts.     South  Gov-  Act,  rights  and  obligations  depend 

ington   R.  Co.   v.  Finan,   153  Ky.  upon   it  and  applicable  principles 

340,  155  S.  W.  742;    W.  U.  Tel.  Co.  of  common  law  as  interpreted  and 

V.  Milling  Co.,  218  U.   S.   406,   31  applied    in    federal    courts.      New 

Sup.    Ct.    59,    54    L.    Ed.    1088,    36  Orleans  and  N.  E.  R.  Co.  v.  Har- 

L.  R.  A.  (N.  S.)  220,  21  Ann.  Cas.       "s,  246  U.  S.  ,  62  L.  Ed.  , 

815."  38   Sup.   Ct.   535,   decided   June   3. 

30     Southern    R.    Co.    v.    Gray.  1918. 

241  U.  S.  333,  60  L.  Ed.  1030,  36  31     Central   Vermont  R.   Co.  v. 

Sup.  Ct.   558;    Southern  R.  Co.  v.  White,    238   U.    S.   507,   59   L.   Ed. 

Prescott,  240  U.  S.  632,  60  L.  Ed.  1433,  35  Sup.  Ct.  865,  9  N.  C.  C.  A. 

836,    36    Sup.    Ct.    469;    Southern  265,  Ann.  Cas.  1916B  252. 

Exp.  Co.  V.  Byers,  240  U.  S.   612,  32     Southern    R.    Co.    v.    Gray, 

60  L.  Ed.  825.  36  Sup.  Ct.  410,  L.  241  U.  S.  333,  60  L.  Ed.  1030,  36 

R.  A.  1917a  197.  Central  Vermont  Sup.   Ct.  558;    Great  Northern  R. 

R.  Co.  V.  White,  238  U.  S.  507.  59  Co.  v.  Wiles,  240  U.  S.  444,  60  L. 

L.    Ed.    1433,    35    Sup.    Ct.    865,    9  Ed.  732.  36  Sup.  Ct.  406. 

N.  C.  C.  A.  265,  Ann.  Cas.  1916B  "While  the  Federal  Employers' 

252.  Liability  Act  does  not   define  the 


934 


Injuries  to  Inteestate  Employes.         [^  536 


applicable  to  any  phase  of  transportation,  it  thereby  in- 
tends that  the  obligation  of  a  carrier  in  respect  to  its 
duties  within  the  statute,  shall  be  governed  by  uniform 
rules  in  the  place  of  the  diverse  requirements  of  state 
decisions.^^  The  question  of  the  responsibility  of  the 
carrier  under  such  circumstances,  is  nevertheless  federal 
although  it  must  be  resolved  by  the  application  of  gen- 
eral principles  of  the  common  law.  The  principle  is 
further  exemplified  in  actions  under  the  Employers'  Lia- 
bility Act  when  the  claim  is  made  and  denied  that  there 
is  no  evidence  tending  to  show  liability.  The  ruling  of 
a  state  court  on  such  a  question,  if  excepted  to,  is  re- 
viewable in  the  United  States  Supreme  Court  because  it 
inherently  involves  the  operation  and  effect  of  the  federal 
law.^*  For  example,  in  Southern  R.  Co.  v.  Gray,  cited 
supra,  the  Supreme  court  of  North  Carolina,  following  a 
state  rule,  decided  that  there  was  sufficient  evidence  for 


term  'negligence'  of  the  carrier, 
it  has  been  determined  that  the 
expression  as  used  in  the  act  is 
the  common  law  negligence  of 
master  and  servant  as  defined  by 
the  federal  courts,  and  that  the 
common  law  as  interpreted  and 
applied  in  the  federal  courts  de- 
termines what  constitutes  negli- 
gence; and,  if  a  state  court  differs 
with  the  federal  courts  as  to  what 
will  or  will  not  constitute  negli- 
gence, the  interpretation  of  the 
federal  courts  necessarily  con- 
trols" Roebuck  v.  Atchison,  T. 
&  S.  F.  R.  Co  99  Kan.  544,  L.  R. 
A.  1917E  741,  162  Pac.   1153. 

"Rights  and  obligations  under 
the  Federal  Employers'  Libility 
Act  depend  upon  that  act  and 
applicable  principles  of  common 
law  as  interpreted  and  applied  in 
federal   courts".     Louisville   &   N. 

R.   Co.  V.   Rhoda,  Fla.  , 

74   So.    19. 

The  rights  and  liabilities  of 
parties  under  federal  statutes  must 


be  determined  in  the  light  of  ap- 
plicable common  law  principles  as 
accepted  and  applied  in  federal 
tribunals.  Continental  Paper  Bag 
Co.  V.  Maine  Cent.  R.  Co.,  115  Me. 
449,   99   Atl.    259. 

"We  recognize  the  fact  that  it 
is  the  common  law  as  interpreted 
and  applied  in  the  federal  courts 
that    is    to    control".        Robie    v. 

Boston  &  M.  R.  R.,  Vt.  , 

100  Atl.  925. 

33.  Southern  R.  Co.  v.  Prescott, 
240  U.  S.  632,  60  L.  Ed.  836,  36 
Sup.  Ct.   469. 

34  Great  Northern  R.  Co.  v. 
Wiles,  240  U.  S.  444,  60  L.  Ed.  732, 
36  Sup.  Ct.  406;  Seaboard  Air 
Line  Ry.  v.  Padgett,  236  U.  S.  668, 
59  L.  Ed.  777,  35  Sup.  Ct.  481; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v 
McWhirter,  229  U.  S.  265.  57  L.  Ed. 
1179,  33  Sup.  Ct.  858;  St.  Louis, 
1.  M.  &  S.  R.  Co.  v.  Taylor,  210 
U.  S.  281,  52  L.  Ed.  1061,  28  Sup. 
Ct.  616. 


935 

the  cause  to  Ix'  suhiiiiitcd  to  the  jury;"  but  on  writ  of 
error,  the  jiatioual  Suitreme  Court  lield  tliat  sucli  action 
was  uiidei- the  fcfh'ral  ad,  and  tlic  rights  and  obligations 
de))end  u])on  fliat  statute  and  the  applicabh^  ))rinciples 
of  the  common  Uiw  as  interpreted  and  applied  in  the 
federal  court.  Applying  these  principles,  it  found,  upon 
an  examiiuition  of  the  evidence,  that  there  was  not  suffi- 
cient testimony  to  show  negligence  under  the  most  favor- 
able view  of  the  testimony  to  the  plaintiff.  "It  would 
seem,"  said  Judge  Trimble  in  an  opinion  which  is  in  har- 
mony with  the  foregoing  cases,^"  "  that  since  the  Employ- 
er's Liability  Act  is  a  general  law  enacted  by  Congress 
to  regulate  the  responsibility  of  interstate  common  car- 
riers by  railroad  to  their  employes  engaged  in  carrying 
on  commerce  between  the  States,  the  purpose  of  Congress 
was  to  establish  one  general  uniform  law  in  that  regard, 
and  that,  therefore,  not  only  the  construction  of  that  Act 
by  the  Federal  courts  but  the  rules  of  decision  adopted 
therein  in  applying  and  enforcing  the  Act,  should  be 
binding  upon  the  State  courts.  It  is  so  held  in  regard 
to  the  liability  of  an  interstate  common  carrier  to  an  in- 
terstate shipper  for  loss  of  goods  created  by  the  Inter- 
state Commerce  Act.  .  .  .  It  is  hard  to  see  how  a 
State  court,  when  called  upon  to  apply  and  enforce  a 
Federal  statute,  can  disregard  the  rules  of  decision  in 
regard  thereto  laid  down  by  the  Federal  courts  and 
follow  its,  the  State  court's,  own  rules  not  in  harmony 
therewith.  If  it  can,  then  the  responsibility  of  an  inter- 
state carrier  to  its  employees  in  interstate  commerce  will 
vary  according  to  the  view  the  various  States  may  take 
of  the  common-law  rule  concerning  assumption  of  risk. 
But  Congress  sought  to  regulate  this  responsibility,  and 
having  acted  in  the  matter,  it  established  a  policy  for 
all,  and  the  liability  as  determined  by  the  several  States 
is  superseded  by  this  one  general  supreme  law.  .  .  . 
It  does  not  seem  that,  in  a  suit  imder  a  general  Federal 

35.'  Gray  v.  Southern  R.  Co.,  167     36.  Cross  v.  Chicago.  B.  &  Q.  R. 
N.  C.  433,  83  S.  E.  849.  Co..  191  Mo.   App.  202.  177  S.  W. 

1127. 


936  IxjuEiEs  TO  Interstate  Employes.         [§  536 

law  intended  as  a  uniform  regulation  affecting  carriers 
and  its  employees  engaged  in  interstate  commerce,  a 
State  court  will  be  allowed  to  apply  its  own  particular 
rule  which  is  not  in  harmony  with  the  Federal  rule. 
Especially  does  this  appear  to  be  so  when  a  writ  of 
error  can  be  taken  to  tlie  Federal  court  of  last  resort 
whose  duty  it  will  be  to  apply  and  enforce  a  general 
Federal  law  having  to  do  with  such  an  exclusively 
Federal  subject  as  interstate  commerce.  It  is  not  ap- 
prehended that,  in  such  case,  the  United  States  Supremo 
Court  will  abandon  its  rule  as  to  assumption  of  risk  and 
apply  the  state  rules"." 

§  537.  Negligent  Act  Must  have  been  Committed 
while  Employe  was  Acting  within  Scope  of  Employment. 
A  carrier  is  not  liable  for  every  act  of  negligence  caus- 
ing injury  to  one  employe  by  another.  The  negligent 
act  causing  the  injury  must  have  been  committed  while 
the  employe  at  fault  w^as  in  the  prosecution  of  the 
carrier's  business;  for,  when  an  employe  voluntarily  and 
without  necessity  growing  out  of  his  work  abandons  the 
employment  and  steps  entirely  aside  from  the  line  of  his 
duty,  he  suspends  the  relation  of  employer  and  em- 
ploye.^®    When  the  negligent  act  which  causes  an  in- 

37.  See  also  St.  Louis,  I.  M.  &  ment  and  steps  entirely  aside  from 
S.  R.  Co.  V.  Steel,  129  Ark.  520,  the  line  of  his  duty,  he  suspends 
15  N.  C.  C.  A.  49,  197  S.  W.  288.  the  relation  of  employer  and  em- 

38.  Spokane  &  I.  E.  R.  Co.  v.  employee  and  puts,  himself  in  the 
Campbell,  241  U.  S.  497,  60  L.  Ed.  attitude  of  a  stranger  or  a  licensee 
1125,  36  Sup.  Ct.  683,  12  N.  C.  C.  The  cases  cited  are  those  where 
A.  1083,  in  which  the  court  said:  an  employee  intentionally  has 
"It  is  most  earnestly  insisted  that  gone  outside  of  the  scope  of  his 
the  findings  establish  that  Camp-  employment  or  departed  from  the 
bell  was  not  in  the  course  of  his  place  of  duty.  The  present  case  is 
employment  when  he  was  injured,  not  of  that  character;  for  Camp- 
and  consequently  that  judgment  bell,  as  the  jury  might  and  pre- 
could  not  properly  be  entered  in  sumably  did  find,  had  no  thought 
his  favor  upon  the  cause  of  action  of  stepping  aside  from  the  line  of 
established  by  the  general  verdict.  his  duty.  From  the  fact  that  he 
This  invokes  the  d'octrine  that  disregarded  and  in  effect  violated 
where  an  employee  voluntarily  the  order  as  actually  communicat- 
and  without  necessity  growing  out  ed  to  him  it  of  course  does  not 
of  his  work  abandons  the  employ-  necessarily    follow     that     he     did 


^  5o7]  Nf/jlt'knce  Undkr  Federal  Act. 


937 


jury  to  or  tlio  dcatli  of  an  employe  had  no  relation  what- 
ever to  tlie  eiiii)l()yni('nt,  the  carrier  is  not  liable,  for  the 
employe  at  fault  must  have  been,  when  committing  the 
act,  within  the  scope  of  his  employment."'-'    And  if  an  em- 


tliis  willfully.  The  jury  was  not 
bound  to  presume — it  would  hard- 
ly be  reasonble  to  presume — that 
he  deliberately  and  intentionally 
ran  his  train  out  upon  a  single 
track  on  which  he  knew  an  in- 
coming train  with  superior  rights 
was  then  due.  However  plain  his 
mistake,  the  jury  reasonbly  might 
find  it  to  be  no  more  than  a 
mistake  attributable  to  mental  ab- 
erration, or  in  attention,  or  failure 
for  some  other  reason  to  ap- 
prehend or  comprehend  the  order 
communicated  to  him.  In  its  legal 
effect  this  was  nothing  more  than 
negligence  on  his  part,  and  not  a 
departure  from  the  course  of  his 
employment.  To  hold  otherwise 
would  have  startling  consequen- 
ces. The  running  of  trains  on  tele- 
graphic orders  is  an  everyday  oc- 
currence on  every  railroad  in  the 
country.  Thousands  of  cases  oc- 
cur every  day  and  every  night 
where  a  failure  by  conductor  or 
engineer  to  comprehend  or  to  re 
member  the  message  of  the  train 
dispatcher  may  endanger  the  lives 
of  employees  and  passengers.  We 
are  not  aware  that  in  any  case  it 
has  been  seriously  contended  that 
because  an  engineer  violated  the 
orders  he  went  outside  of  the  scope 
of  the  employment.  If  he  did  so, 
in  the  sense  of  absolving  the  em- 
ployer from  the  duty  of  exercising 
care  for  his  safety,  it  is  not  easy 
to  see  upon  what  principle  the  em- 
ployer's liability  to  passengers  or 
to  fellow  employees  for  the  con- 
sequences of  his  negligence  could 
be  maintained.     The  unsoundness 


of  the  contention  is  so  apparent 
that  further  discus.sion  is  unneces- 
sary." 

39.       Florida.        Seaboard      Air 

Line  Ry.   Co.   v.   Hess, Fla. 

74    So.    500. 

Kansas.  Martin  v.  Atchinson, 
T.  &  S.  F.  R.  Co.,  93  Kan.  681,  14.5 
Pac.  849. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  V.  Wilson's  Adm'r, 
IGl  Ky.  640,  171  S.  W.  430. 

Minnesota.  Rief  v.  Great  North, 
ern  R.  Co..  126  Minn.  430,  148  N. 
W.   309. 

Montana.  Moyse  v.  Northern 
Pac.  R.  Co.,  41  Mont.  272,  108  Pac. 
1062. 

Oklahoma.  Missouri,  K.  &.  T.  Ry. 
Co.  V.  West,  38  Okla.'581,  134  Pac. 
655. 

Washington.  Vanordstrand  v. 
Northern  Pac.  R.  Co.,  86  Wash. 
655.  151  Pac.  89;  Reeve  v.  North- 
ern Pac.  R.  Co.,  82  Wash.  268,  N.  C. 
C.  A.  167,  144  Pac.  63,  Hobbs  v. 
Great  Northern  R.  Co..  80  Wash. 
678.  L.  R.  A.  1915D  503,  142  Pac. 
20. 

"The  employe,  to  come  within 
the  provisions  of  either  the  state 
law  or  the  federal  act  must  receive 
his  injuries  while  in  the  course  of 
his  employment.  If  he  voluntari- 
ly undertakes  the  performance  of 
a  duty  for  which  ne  w-as  not  em- 
ployed, he  acts  at  his  own  peril 
and  does  not  come  within  the 
terms  of  the  act.  *  *  *  Counsel 
for  appellee  insists,  however,  that 
these  well  settled  rules  have  been 
changed  by  the  Federal  Employ- 
er's   Liability    Act.    and    that    all 


938 


Injuries  to  Interstate  Employes.         [^  537 


ploye  is  injured  or  killed  at  a  time  and  place    and  from 
a   cause     disconnected    with   his    employment    for    the 


that  is  necesary  to  be  shown  to 
recover  under  that  act  is  that 
an  employe  was  injured  while 
engaged  in  interstate  commerce, 
no  matter  whether  in  the  course 
of  his  employment  or  not.  The 
cases  cited  by  him  do  not,  as 
we  read  them,  so  hold".  Byram 
V.  Illinois  Cent.  R.  Co.,  172  Iowa 
631,  154  N.  W.  1006. 

"It  is  a  common  thing  in  these 
days  for  statutes  to  be  enacted 
abrogating  some  of  the  common* 
law  defenses  of  the  master  to 
actions  by  an  employe  for  injuries 
sustained  in  his  employment; 
and  very  frequently  statutes,  such 
as  mining  acts  and  factory  acts, 
compensation  acts,  and  employers' 
liability  acts,  impose  upon  the 
employer  duties  and  liabilities 
whch  were  unknown  to  the  com- 
mon law.  Except  where  some 
such  statutory  provision  governs, 
we  are  aware  of  no  rule  of  law 
adopted  by  the  courts,  which  goes 
to  the  extent  of  holding  the 
master  liable  for  the  willful  and 
criminal  assault  by  one  employe 
upon  another,  where  the  assault 
was  not  expressly  or  impliedly 
authorized  or  within  the  scope  of 
the  employment.  As  was  said  in 
Crelly  v.  Telephone  Co.,  supra: 
'The  act,  as  in  this  instance,  may 
have  been  done  while  the  servant 
was  in  the  master's  service;  but, 
unless  it  was  expressly  or  impli- 
edly authorized,  or  within  the 
scope  of  the  employment,  the  ser- 
vant alone  is  responsible.  In  the 
same  volume  of  .the  Texas  reports 
in  which  the  decision  we  have 
quoted  from,  supra,  is  published, 
there  appears  the  case  of  Medlin 
Milling  Co.  v.  Boutwell,  104  Tex. 


87,    133    S.   W.    1042,    34    L.   R.   A. 
(N.    S.)     109.     In    that    case    the 
syllabus  reads:  'The  master  is  not 
liable  to  a  servant  for  an  assult 
upon  him  by  other  servants  in  no 
way  connected   with   their  duties 
to   the   employer.     As   where   em- 
ployes of  a  milling  company,  in 
pursuance    of    a    customte'    before 
practiced,    undertook    to    'initiate' 
a  new  employe  into  the  service  by 
stretching  him  across  a  barrel  and 
'paddling'  him  and  he  was  injured 
in    resisting    such    violence.     The 
knowledge    and     acquiescence    of 
officers  or  managers  of  a  company 
in    a    custom    of    rude    frolic    by 
employes  in  receiving  a  new  one 
into  the  service,  amounting  to  an 
assault  and  inflicting  injury,  was 
not  within  the  scope  of  their  au- 
thority or  in  the  company's   ser- 
vice, and  it  was  not  rendered  li- 
able to  the  injured  party  by  such 
acquiescence.       In  the  opinion  it 
was  said:  'It  is  not  the  legal  duty 
of  the  master  to  protect  the  ser- 
vant   from   unlawful   assaults   by 
strangers,     and    another     servant 
committing   such    an    assault,   not 
in  the   scope  of  his  employment, 
must  be  regarded   as  a  stranger. 
It  is  plain  that  it  could  not  have 
been    the    intention    of    Congress 
to  make  the  carrier  liable  for  in- 
jury or  death  to  an  employe  oc- 
casioned by  the  act  of  a  stranger. 
We  are  fully  in  harmony  with  the 
liberal   interpretation  of   the  fed- 
eral Employers'  Liability  Act  by 
the  federal  courts  generally;   but 
we  cannot  conceive  it  to  have  been 
the  intention   of  Congress  to  im- 
pose upon  the  carrier  duties  and 
obligations  save  those  of  an  em- 
ployer;   nor  that  it  was  the  pur- 


'§.  537]  Negljgence  Under  Federal  Act,  939 

carrier,  the  carrier  is  not  liable  tor  the  statute  requires 
the  servant  injured  to  liave  been  at  the  time  employed 
in  interstate  coinnierce.'"  In  Keeve  v.  Northern  P.  Ky. 
Co.,  cited  in  the  notes,  ])laintii"f  was  a  laborer  in  the  em- 
ploy of  the  railroad  conii)any,  and,  as  a  part  of  his 
duties,  supplied  baft'^a^e  cars  of  the  defendant  with 
water  and  fuel.  When  injured  he  was  sitting  on  the 
floor  of  a  baft-;i;-age  car  in  tlie  door  with  his  feet  hanging 
outside  of  the  door  resting  on  the  iron  steps  or  stirrups 
which  hung  below.  AVliile  so  sitting  two  other  employes 
of  the  company  began  wrestling  or  scuffling  in  the  body 
of  the  car  and  while  so  engaged,  whether  intentional  or 
not,  did  not  appear  in  the  evidence,  one  of  them  brushed 
against  or  pushed  the  plaintiff,  causing  him  to  fall  to  the 
ground  and  he  sustained  injuries.  Under  these  facts,  in 
an  action  under  the  Federal  Employers'  Liability  Act, 
the  court,  in  denying  a  recovery,  held  that  a  railroad 
company  was  not  liable  unless  the  negligent  act  occurred 
while  the  employes  were  doing  some  act  required  of 
them  in  the  prosecution  of  the  carrier's  business  and  that 
the  federal  statute  was  not  intended  to  cover  negligent 
acts  of  an  employe  in  no  way  connected  with  the  busi- 
ness, the  prosecution  of  which  he  was  employed  to  aid. 
In  Cincinnati,  N.  0.  &   T.  P.  Ry.  Co.   v.  Wilson,  cited  in 

pose    to    impose    new    obligations       70   Wis.  420,  5  Am.   St.   Rep.  178. 
not   unsually    imposed    upon    em-       36  N.  W.  12,  591. 
ployers,    except    as    tlie    law    of  A    brakeman    on    an    interstate 

master  and  servant  is  by  the  ex-  train  after  reaching  the  terminal 
press  terms  of  the  act  itself  with  his  train  and  before  he  was 
limited  or  restricted."  Roebuck  discharged  for  the  day,  went  into 
Atchison,    T.    &    S.    F.    R.    Co  ,       ^  ^^^^^^  "^^^  ^^^  railroad  yards 

to  get  a  drink.  While  returning 
to  the  yards  he  was  struck  and 
injured  bv  a  car.  due  to  the  neg- 
40.  Hurst  V.  Chicago,  R.  I.  &  ^.^^^^^  ^^  ^^j^^^.  emploves.  The 
P.  R.  Co.,  49  Iowa  76:  Dickinson  ^^^^^.^  j^^j^  ^^^^^  notwithstanding 
V.  West  End  St.  Ry.  Co.,  177  Mass.  ^^^  f^ct  that  he  was  returning 
365,  52  L.  R.  A.  326,  83  Am.  St.  from  a  personal  errand,  he  was 
Rep.  284,  Padgett  v.  Seaboard  Air  nevertheless  employed  in  inter- 
Line  Ry.,  99  S.  C.  364,  83  S.  E.  633;  state  commerce.  Graber  v.  Duluth, 
Ry.,  97  S.  C.  50,  81  S.  E.  283;  S.  S.  &  A.  R.  Co.,  159  Wis.  414. 
Ewald  V.  Chicago  &  W.,  Ry.  Co.,       150  N.  W.  489. 


V. 

99  Kan.  544,  L.  R.  A.   1917E  741, 
162   Pac.   1153. 


940  Injukies  to  Interstate  Employes.         [§  537 

the  notes,  a  section  foreman  on  a  train  standing   on  the 
passing  track   at   a  station,   erroneously   thinkng   that 
another  train  approaching  at  a  rapid  rate  of   speed  was 
about  to  collide  with  it,  warned  his  men  to  jnmp,  which 
the}'  did,  the  foreman  witli  them.     The  decedent,  one  of 
the  section  men  under  him,  ran  across  the  main  line  of 
the  railroad  at  that  place  and  was  struck   and  killed  by 
the  other  train.     Answering  a  contention  that   the  fore- 
man was  not  acting  within  the  course  of  his  employment, 
the  court  held  that  the   act  of  the   foreman   in  shouting 
and  warning  the  men,   was  one   within  the   scope  of  his 
employment  and  was  an  act  fairly  imputable  to  the  mas- 
ter imposing  legal  liability  therefor.     In  Rief  v.  Great 
Northern  Ry.   Co.,  cited,  the  plaintiff  was  a  "student 
brakeman"  receiving  no  compensation  from  the  railroad 
company.    For  12  days  previous  to  the   injury  he   had 
been  upon  defendant's  trains  in  that   capacity.     At  the 
time  he  entered  upon  his  course  of  learning  he  signed  a 
written  statement  in  which  he  agreed  that  he  should  re- 
ceive no  compensation  and  that  he  would  not  be  held  to 
be  a  ser\^ant  but  a  licensee  upon  the  property  of  the  de- 
fendant.   He  was  injured  while   attempting  to   descend 
from  a  box  car  to  throw  a  switch  by  striking  a  coal  chute 
close  to  the  track.     In  an  action  under  the  federal  act 
the  court  held  that  the  plaintiff  was  an  employe  of  the 
defendant  as  a  matter  of  law,  as  the   testimony   showed 
that  he  was  expected  to  perform  and  did  perform   such 
tasks  as  were  assigned  him  by  members  of  the   crew  in 
charge  of  the  trains.    He  helped  load  and  unload  freight 
at  way   stations,   threw   switches   and   did  whatever  he 
was  ordered  to  do  in  the  operation  of  a  train.    In  Hobbs 
V.  Great  Northern  Ry.  Co.,  cited,  the  decedent  was  killed 
while  riding  upon  the  pilot  of  an  engine.     He  was  a 
hostler's  helper  and  his  last  work   was  placing   sand  in 
the  engine.    In  doing  this  work  the  deceased  was  not  re- 
quired to  ride  on  a  pilot.    No  one  knew  why  he  stepped 
upon  the  pilot.    The  engine  in  moving  collided  with  the 
footboard  of  another  switch  engine,  which  was  not  visi- 
ble because  of  escaping  steam,  and  this  caused  decedent's 
death.    There  was  a  rule  of  the   railroad  company   for- 


"§►  537]         Negligence  Under  Federal  Act.  941 

bidding  employes  to  'ride  on  engine  pilots  and  the 
decedent,  in  addition,  had  been  specifically  told  not  to 
ride  on  pilots.  The  court,  in  denying  that  the  railroad 
company  was  liable,  said:  "The  rule  of  liability  against 
a  railway  company  engaged  in  interstate  commerce  is 
l)redicated  upon  the  duty  of  the  company  to  furnish  its 
servant  with  a  reasonably  safe  place  in  wliich  to  perform 
the  work  it  requires  of  him  or  while  he  is  about  in  those 
places  which  are  incident  to  his  work  ,  and  this  duty  is 
incident  to  all  i)laces  where  the  employe  must  necessari- 
ly be  in  connection  with  his  employment.  But  that  duty 
is  not  incident  to  his  place  where  a  servant  is  not  re- 
quired to  be  nor  expected  to  be  in  the  performance  of 
his  work.  Nor  does  it  cover  the  sen-ant  when  lie  is  not 
within  the  scope  of  his  employment  or  doing  some  act 
which  is  not  incidental  to  his  employment.  This  rule  is 
sustained  by  all  authorities  and  the  federal  act  in  no 
wise  attempts  to  change  it.  Unless  the  evidence  in  this 
case  shows  that  the  deceased  was  upon  the  pilot  of  his 
engine  in  discharge  of  some  duty  required  by  the  rail- 
road company,  then  the  railroad  company  owed  him  no 
duty  except  to  avoid  injuring  him  after  it  discovered 
his  perilous  position.  Such  is  so  clearly  the  law  that  it 
will  not  be  -doubted  and  no  authorities  need  be  cited  to 
sustain  it.  There  is  no  evidence  in  this  record  that  the 
deceased  was  required  to  do  any  act  which  would  place 
him  upon  the  pilot  of  the  engine.  ^Ul  the  evidence  on 
this  subject  is  to  the  contrary".  So  far  as  we  can  find, 
whatever  it  was  that  caused  him  to  step  upon  the  pilot, 
it  was  his  own  purpose,  not  in  any  way  connected  with 
his  work  as  a  hostler's  helper.  If  it  was  his  purpose  to 
engage  in  any  task,  so  far  as  this  record  goes,  in  so  do- 
ing he  was  a  volunteer  without  appellant's  direction  or 
knowledge  and  so  far  as  the  law  is  concerned  the  result 
is  the  same.  If  we  could  find  anything  in  the  evidence 
which  would  justify  a  different  conclusion,  however 
meager  it  might  be,  we  would  submit  to  the  verdict  as 
determinative  of  the  fact.  But  we  cannot  find  it  and 
such  being  the  case,  however  unfortunate  or  distressing 
the  circumstances  may  be,  it  is  our  duty  to  so  hold." 


942 


Injuries  to  Interstate  Employes. 


[§  538 


§  538.  Negligence  Must  be  Proximate  Cause  of  In- 
jury. For  the  plaintiff  to  recover  under  the  Federal  Em- 
ployers' Liability  Act  it  is  not  sufficient  that  he  prove 
negligence  and  injury  under  conditions  within  the  terms 
of  the  act.  To  create  a  jury  issue,  the  plaintitT  must 
introduce  proof  tending  to  show  that  the  alleged  negli- 
gence was  the  proximate  cause  of  the  damage.^^     The 


41.  United  States.  Union  Pac. 
R.  Co.  V.  Hadley,  246  U.  S.  330, 
62  L.  Ed.— 38  Sup.  Ct.  318,  aff'g 
99  Neb.  349,  156  N.  W.  765;  Atch- 
ison, T.  &  S.  F.  R.  Co.  V.  Swearin- 
gen,  239  U.  S.  339,  60  L.  Ed.  317, 
36  Sup.  Ct.  121,  10  N.  C.  C.  A. 
778,  St.  Louis  &  S.  F.  R.  Co.  v. 
Conarty,  238  U.  S.,  243,  59  L.  Ed. 
1290  35  Sup.  Ct.  785;  Milwaukee  & 
St.  P.  Ry.  Co.  V.  Kellogg,  94  U.  S. 
469,  24  L.  Ed.  256;  Pennsyl- 
vania R.  Co.  V.  Glas,  152  C.  C.  A. 
244,  239  Fed.  256;  Delaware 
&  H.  Co.  V.  Ketz,  147  C.  C. 
A.  101,  233  Fed.  31;  Clark  v. 
Erie  R.  Co.,  230  Fed.  478;  Smith 
V.  Illinois  Cent.  R.  Co.,  119  C.  C. 
A.  33,  200  Fed.  553;  Atchison,  T. 
&  S.  F.  R.  Co.  V.  De  Sedillo,  135 
C.  C.  A.  358,  219  Fed.  686. 

Florida.     Louisville  &  N.  R.  Co. 

V.   Rhoda,  Fla.  ,   74   So. 

19. 

Georgia.  Louisville  &  N.  R.  Co. 
V.  Paschal,  145  Ga.  521,  89  S.  E. 
620;  Charleston  &  W.  C.  R.  Co. 
V.  Sylvester,  17  Ga.  App.  85,  86 
S.  E.  275;  Charleston  &  W.  C.  R. 
Co.  v.  Brown,  13  Ga.  App.  744  79 
S.   E.   932. 

Indiana.     Chicago  &  E.   R.   Co. 

V.  Freighter,  Ind.  App.  , 

114   N.   E.    659. 

Iowa.     Rhodes  v.  Chicago,  R.  I. 

&  P.  Ry.  Co.,  Iowa ,  161 

N.    W.    652. 

Kentucky.  Judd's  Adm'x  v. 
Southern  R.  Co.,  171  Ky.  832,  188 


S.  W.  880;  Young  v.  Norfolk  & 
W.  R.  Co.,  171  Ky.  510,  188  S.  W. 
621; 

Michigan.  Salabrin  v.  Ann 
Arbor  R.  Co.,  194  Mich.  458,  160 
N.  W.  552;  Chapman  v.  United 
States  Ex.  Co.,  192  Mich.  654,  159 
N.    W.    308. 

Minnesota.  Beecroft  v.  Great 
Northern  R.  Co.,  134  Minn.  86,  158 
N.  W.  800; 

Mississippi.  Hooks  v.  New  Or- 
leans &  N.  E.  R.  Co.,  Ill  Miss.  743, 
72   So.   147. 

Missouri.  State  ex  rel.  Lusk  v. 
Ellison,  271  Mo.  463,  196  S.  W. 
1088;  Strother  v.  Chicago,  B.  & 
Q.  R.  Co.  (Mo.),  188  S.  W.  1102; 
Haines  v.  Chicago,  R.  1.  &  P.  Ry. 
Co.,  193  Mo.  App.  463,  185  S.  W. 
1187;  Fish  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  263  Mo.  lOG,  8  N.  C.  C.  A. 
538,  Ann  Cas.  1916B  147,  172  S. 
W.  340. 

New  York.  White  v.  Lehigh 
Valley  R.  Co.,  220  N.  Y.  131,  115 
N.   E.   439. 

Oklahoma.  St.  Louis  &  S.  P.  R. 
Co.  V.  Snowden,  48  Okla.  115,  149 
Pac.   1083. 

South  Carolina.  Steele  v.  Atlan- 
tic Coast  Line  R.  Co.,  103  S.  C 
102,   87   S.   E.   639. 

Vermont.  White's  Adm'x,  v. 
Central  Vermont  R.  Co.,  87  Vt. 
330,    89    Atl.    618. 

Virginia.  Virginia  &  S.  W.  R. 
Co.  V.  Hill.  119  Va.  837,  89  S.  E. 
895. 


<^'  538]         Ni'XJLiGENCE   Undek    Fkdekal   Act. 


943 


cliaractcr  of  evidence  necesai  y  to  prove  siieli  causation 
must  depend    largely  upon  tlie  ciix-umstances  of  each  case. 


Washington.  Bjornsen  v.  North- 
ern rac.  R.  Co.,  84  Wash.  220,  146 
Pac.    57'). 

West  Virginia.  Easter  v  .Vir- 
ginian R.  Co.,  76  W.  Va.  383,  11 
N.  C.  C.  A.  101,  86  S.  E.  37. 

Wisconsin.  Calhoun  v.  Great 
Northern  R.  Co.,  162  Wis.  264,  156 
N.  W.   198. 

Where  the  facts  relied  upon 
bring  the  case  within  the  rule  that 
-where  an  injury  may  as  reason- 
ably be  attributed  to  a  cause  that 
will  excuse  the  defendant  as  to  a 
cause  that  will  subject  it  to  lia- 
bility, no  recovery  can  be  had. 
Patton  V.  Texas  &  P.  R.  Co.,  171) 
U.  S.  658.  45  L.  Ed.  361.  21  Sup. 
Ct.  275. 

The  federal  decisions  discussing' 
the  nature  and  character  of  the 
term  "proximate  cause"  are  re- 
viewed by  the  court  in  Delaware 
&  H.  Co.  V.  Ketz.  147  C.  C.  A. 
101,  233  Fed.  31,  a  case  under 
the  Federal  Employers'  Liability 
Act. 

"To  justify  a  recovery  for  an 
injury  caused  by  a  train  striking 
a  section  hand  while  engaged  in 
repairing  a  track,  it  must  be 
shown  that  the  proximate  cause 
of  his  injury  was  the  railway 
company's  neglect  of  some  duty 
due  to  him  in  respect  to  his  pro- 
tection from  injury  by  passing 
trains."  Southern  Ry.  Co.  v.  Black- 
well,   Ga.    App.   .    93    S. 

E.  321,  an  action  under  the  Fed- 
eral Act. 

It  is  not  sufficient  merely  to 
show  that  the  decedent  was  killed 
by  the  defendant  and  that  the  de- 
fendant was  guilty  of  negligence. 
It  must  further  appear  that  his 
death   was  caused   by   the   proven 


negligence.  Sutton's  Adm'r  v. 
Louisville  &  N.  R.  Co.,  KiS  Ky.  SI, 
181  S.  W.  938. 

If  it  is  a  matter  of  fair  infer- 
ence by  the  jury  that  an  un- 
expected jerk  came  from  the  negli- 
gent giving  of  a  stop  signal  by 
the  conductor,  causing  the  deced- 
ent's death,  the  question  of  prox- 
imate cause  is  not  a  mere  matter 
of  speculation.  Thompson  v.  Min- 
neapolis &  St.  L.  R.  Co.,  133  Minn. 
203,  158  N.  W.  42. 

"The  plaintiff  must  prove  that 
the  death  of  his  intestate  came 
from  some  act  for  the  result  of 
which  the  defendant  is  liable.  It 
is  not  for  the  defendant  to  show 
that  it  came  from  some  act  for 
which  it  is  not  responsible.  The 
proof  need  not  be  direct  or  pos- 
itive. It  must  leave  the  result 
more  than  conjectural."  Hurley 
V.  Illinois  Cent.  R.  Co..  133  Minn. 
101.  157  N.  W.  1005. 

The  evidence  must  point  out, 
with  a  reasonable  degree  of  cer- 
tainty, that  the  doath  of  plain- 
tiff's intestate  was  directly  due, 
either  in  whole  or  in  part,  to  the 
negligence  of  some  one  or  more 
of  defendant's  servants  other  than 
himself.  Hull  v.  Virginian  R.  Co., 
78   W.   Va.   25,   88   S.   E.    1060. 

"There  is  also  a  plain  elpment- 
ary  principle  of  negligence  law 
that  to  constitute  actionable  neg- 
ligence there  must  be  a  concur- 
rence of  two  things;  First,  neg- 
ligence; and,  second,  injury  re- 
sulting as  a  proximate  cause  of 
it.  It  matters  not  how  negligent 
a  person  may  be;  his  negligence, 
unless  the  injuries  complained  of 
were  the  proximate  result  of  it. 
will   not   authorize  a  recovery  in 


944  Injuries  to  Interstate  Employes.         [^  538 

The  inquiry  whether  proof  having  such  tendency  has 
been  introduced,  is  not  to  be  solved  by  indulging"  in  mere 
surmises  or  conjecture  or  by  resorting  to  imaginary 
possibilities,  for  to  do  so  would  but  resolve  the  question 
to  the  generic  rule  of  liability  as  an  insurer.  Applying 
these  principles  to  a  case  under  the  act  where  the 
negligence  charged  was  a  violation  of  the  national  Hours 
of  Service  Act,  the  national  Supreme  Court  has  held 
that  proof  of  working  overtime  does  not  create  an  un- 
conditional liability  for  accidents  in  the  absence  of  proof 
showing  a  causal  connection  between  the  accident  and 
the  working  overtime.^^  An  injury  which  is  the  natural 
and  ]^robable  result  of  an  act  of  negligence  is  actionable, 
and  such  an  act  is  the  proximate  cause  of  the  injury. 
But  an  injuiy  that  could  not  have  been  foreseen  or 
reasonably  anticipated  as  the  probable  result  of  an  act  of 
negligence  is  not  actionable,  and  such  an  act  is  either  the 
remote  cause,  or  no  cause  whatever  of  the  injury.*^  The 
natural  consequence  of  an  act  is  the  consequence  which 
ordinarily  follows  it,  the  result  which  may  reasonably  be 
anticipated  from  it.  A  probable  consequence  is  one  that 
is  more  likely  to  follow  its  supposed  cause  than  it  is  not 
to  follow  it.^* 

damages."    Cincinnati,  N.  0.  &  T.  S.    R.    Co.    v.    McWliirter,    229    U. 

P.  R.  Co.  V.  Perkins'  Adm'r,  177  Ky  S.  26.5,  57  L.  Ed.  1179,  33  Sup.  Ct. 

88.   197   S.  W.   526.  858;     Helm   v.    Cincinnati,    N.    O. 

The  negligent  failure  of  a  rail-  &  T.  P.  R.  Co.,  156  Ky.  240,  160 

road  company  to  have  lights  burn-  S.  W.  945;    Bjornsen  v.  Northern 

ing  about  its  station  was  not  the  Pac.    R.    Co.,    84    Wash.    220,    146 

proximate   cause   of   an   injury   to  Pac    575. 

a  station  master  who  was  assault-  43.     Atchison,  T.  &  S.  F.  R.  Co. 

ed  bv  a  robber  at  night  while  at-  v.  Calhoun,  213  U.  S.  1,  53  L.  Ed. 

tending  to  his  duties,  the  assault  f  l'/9  Sup.  Ct  321;    Milwaukee 

,  ^^  ,  ^  .  .        ,  &   St.    P.    Ry.    Co.    V.   Kellogg,    94 

Of  the  robber  not  being  a  natural  ^    ^     ^^^     ^^    ^    ^^    ^56;     Del- 

and    probable   consequence   of   the  ^^^^^  ^  ^    ^^    ^    ^^^^    ^^^  ^    ^ 

failure   to   keep    the   lights   burn-  ^    ^^^    233   ped    31 

ing.     Carter  v.  Atlantic  C.  L.   R.  44      Armour  &  Co.  v.  Harcrow, 

Co.,  S.  C.  ,  95  S.  E.  357.  ;^33  q    q    a.  218,  217  Fed.  224,  7 

42.    Atchison,  T.  &  S.  F.  R.  Co.  ^    q    c.   A.   325;     Chicago,    B.    & 

V.   Swearingen,  239  U.   S.  339,   60  q.   r.    Co.   v.   Richardson.   121    C. 

L.  Ed.  317,  36  Sup.  Ct.  121,  10  N.  c.  A.  144,  202  Fed.  836;    St.  Louis, 

C.  C.  A.  778;     St.  Louis,  I.  M.  &  K.  C.  &  C.   R.  Co.  v.  Conway,  86 


^  5391 


Netjltgknce  Under  Fedf.hat,   Act. 


945 


§  539.  Meaning  of  the  Phrase  "In  Whole  or  in  Part." 

Liability  is  sliown  undor  tlie  federal  act  wlion  tlic  plain- 
tiff proves  that  the  injury  or  death  was  due  either  "in 
whole  or  in  part"  to  negligence  of  the  defendant.^"'  This 
phrase  is  an  adoption  of  the  common  law  doctrine  of 
concurrent  causes.  Although  causes  for  which  the 
carrier  is  not  liable  contribute  directly  to  produce  the  in- 
jury, 5^et  if  a  cause  for  which  the  carrier  is  liable,  that 
is,  a  negligent  act  of  any  other  employe  or  a  defect  or 
insufficiency  due  to  negligence  in  equipment  or  works, 
contributes  also  as  a  cause,  without  which  the  injury 
would  not  have  occurred,  the  carrier  is  still  liable. *''  The 
quoted  phrase  means  nothing  more  or  less  than  that  the 
negligent  act  must  be  the  proximate  cause  under  the  fed- 
eral of  the  injury  and,  in  cases  of  doubt,  to  ascertain  when 
a  negligent  act  is  the  proximate  cause  under  the  federal 
law,  decisions  of  courts  passing  upon  such  questions  un- 
der the  common  law,  are  applicable.*^ 


C.  C.  A.  1.  156  Fed.  234;  Chicago, 
St.  P..  M.  &  O.  Ry.  Co.  V.  Elliott, 
5  C.  C.  A.  347,  55  Fed.  949,  20  L. 
R.  A.   582. 

45.  Union  Pac.  R.  Co.  v.  Hadley, 

246    U.    S.    330,    62    L.    Ed.   , 

38  Sup.  Ct.  318,  aff'g  99  Neb.  349, 
156  N.  W.  765; 

46.  Louisville  &  N.  R.  Co.,  v. 
Paschal,  145  Ga.  521,  89  S.  E.  620; 
Young  V.  Norfolk  &  W.  R.  Co.,  171 
Ky.  510,  188  S.  W.  621;  O'Connor 
V.  Chicago.  M.  &  St.  P.  R.  Co.,  163 
Wis.  653,  158  N.  W.  343;  Molzoff 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  162 
Wis.  451,  11  N.  C.  C.  A.  273,  156 
N.  W.  467;  Calhoun  v.  Great 
Northern  R.  Co.,  162  Wis.  264,  156 
N.  W.  198. 

Under  the  federal  act  it  is  suffi- 
cient if  the  injury  to  an  employe 
results  in  whole  or  in  part  from 
the  negligence  of  any  of  the  offi- 
cers, agents,  or  employes  of  the 
common  carrier.  Molzoff  v.  Chicago 
M.  &  St.  P.  R.  Co.,  supra. 


47.  Texas  &  P.  Ry.  Co.  v.  Stew- 
art, 228  U  S.  357,  57  L.  Ed.  875, 
33  Sup.  Ct.  548;  Atchison,  T.  & 
S.  F.  Co.  V.  Calhoun,  213  U.  S.  1. 
53  L.  Ed.  671,  29  Sup.  Ct.  321; 
Choctaw,  O.  &  G.  R.  Co.  v.  Hol- 
laway,  191  U.  S.  334,  48  L.  Ed. 
207,  24  Sup.  Ct.  102;  Hayes  v. 
Michigan  Cent.  R.  Co.,  Ill  U.  S. 
228.  28  L.  Ed.  410,  4  Sup.  Ct.  369: 
Scheffer  v.  Washington  City,  V.  M. 
&  G.  S.  R.  Co..  105  U.  S.  249,  26 
L.  Ed.  1070;  Milwaukee  &  St.  P. 
Ry.  Co.  V.  Kellogg,  94  U.  S.  469, 
24  L.  Ed.  256;  Armour  &  Co.  v. 
Harcrow,  133  C  C.  A.  218,  217  Fed. 
224,  7  N.  C.  C.  A.  325;  Union  Pac. 
R.  Co.  V.  Fuller,  122  C.  C.  A.  359, 
204  Fed.  45;  Louisville  &  N.  R. 
Co.  V.  Wene,  121  C.  C.  A.  245.  202 
Fed.  887;  Shugart  v.  Atlanta,  K. 
&  N.  Ry.  Co.,  66  C.  C.  A.  379,  133 
Fed.  505:  Missouri,  K.  &  T.  R.  Co. 
v.  Byrne,  40  C.  C.  A.  402,  100  Fed. 
359:  St.  Louis,  I.  M.  &  S.  Ry.  Co. 
v.  Needham,  16   C.  C.  A.  457,   69 


1    Control    Carriers    CO 


946 


Injuries  to  Interstate  Employes. 


[§  540 


§  540.  State  Statutes  Creating  Presumption  of 
Negligence  from  Injury  Inapplicable  to  Interstate  Em- 
ployes. When  Congress  regulates  a  particular  subject 
under  the  poAver  granted  to  it  by  commerce  clause, 
state  laws  applying  to  the  same  subject  are 
suspended.*^  State  legislature  cannot  supplement  a 
national  statute  by  prescribing  additional  regulations 
governing  the  same  field. *°  When,  therefore,  Congress  en- 
acted tlie  Federal  Employers' Liability  Act  prescribing 
liability  for  injuries  in  interstate  commerce,  state  laws 
creating  a  presumption  of  negligence  upon  proof  of  an  in- 
jury were  inoperative  as  to  all  employes  of  common  car- 
riers by  railroad  injured  or  killed  while  engaged  in  inter- 
state commerce."'"  Thus,  a  flagman  on  an  interstate  train 


Fed.  823;  Travelers'  Ins.  Co.  of 
Hartford  v.  Melick,  12  C.  C.  A. 
544,  65  Fed.  178,  27  L.  R.  A.  629; 
Bowers  v.  Southern  R.  Co.,  10  Ga. 
App.  367,  73   S.  E.   677. 

48.  New  York  Cent.  R.  Co.  v. 
Winfield,  244  U.  S.  147,  61  L.  Ed. 
1045,  37  Sup.  Ct.  546,  14  N.  C  C. 
A.  680,  Ann.  Cas.  1917D  1139; 
Southern  Pac.  Co.  v.  Jensen,  244  U. 
S.  205,  61  L.  Ed.  1086,  37  Sup.  Ct. 
524,  L.  R.  A.  1917E  900;  Texas 
&  P.  R.  Co.,  V.  Rigsby,  241  U.  S. 
33,  60  L.  Ed.  874,  36  Sup.  Ct.  482; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  De- 
vine,  239  U.  S.  52,  60  L.  Ed.  140, 
36  Sup.  Ct.  27;  Erie  R.  Co.  v.  New 
York,  233  U.  S.  671,  58  L.  Ed.  1149, 
34  Sup.  Ct.  756,  52  L.  R.  A.  (N. 
S.)  266,  Ann.  Cas.  1915D  138; 
Taylor  v.  Taylor,  232  U.  S.  363,  58 
L.  Ed.  638,  34  Sup.  Ct.  350,  6  N.  C. 
C.  A.   436. 

49.  Michigan  Cent.  R.  Co.  v. 
Vreeland,  227  U.  S.  59,  57  L.  Ed. 
417,  33  Sup.  Ct.  192,  Ann  Cas. 
1914C  176;  Prigg  v.  Pennsylvania, 
16  Pet.  (U.  S.)  539,  10  L.  Ed. 
1060. 

50.  United  States.  Louisville  & 
N.  R.  Co.  V.  Rhoda,  238  U.  S.  608, 


59  L.  Ed.  1487,  35  Sup.  Ct.  662 
(men.    dec). 

Arkansas.  Kansas  City  South- 
ern R.  Co.  V.  Cook,  100  Ark.  467, 
140   S.   W.    579. 

Florida.     Louisville  &  N.  R.  Co. 

V.   Rhoda,   ■ Fla.   ,   74   So. 

19. 

Georgia.  Templesi  v.  Central  of 
Georgia  R.  Co.,  19  Ga.  App.  307, 
91  S.  E.  502;  Ivey  v.  Louisville 
&  N.  R.  Co.,  18  Ga.  App.  434,  89 
S.  E.  629;  Central  of  Georgia  R. 
Co.  V.  De  Loach,  18  Ga.  App.  362, 
89  S.  E.  433;  Alabama  Great 
Southern  R.  Co.  v.  Tidwell,  145 
Ga.  190,  88  S.  E.  939;  Charleston 
&  W.  C.  R.  Co.  V.  Brown,  13  Ga. 
App.  744,  79  S.  E.  932;  Louis- 
ville &  N.  R.  Co.  V.  Kemp,  140 
Ga.    657,   79    S.   E.   558. 

Kentucky.  South  Covington  & 
C.  St.  R.  Co.  V.  Finan's  Adm'x, 
153  Ky.  340,  155  S.  W.   742. 

"Under  the  state  statute  the 
servant  need  only  to  prove  that 
he  was  injured  by  reason  of  a  de- 
fective appliance  to  make  a  prima 
facie  case;  while,  under  the  fed- 
eral statute,  thCi  presumption  pre- 
vails, even  after  proof  of  the  de- 


<§>  540]  Neoltgf.nce  Under  Fedf,t?at,   Act.  947 

on  arriving  at  bis  dostination  ])oint,  was  ordorod  to  go  to 
the  yardmastor's  oflico.  In  complying  with  this  order, 
ho  was  required  to  cross  several  yard  tracks.  Shortly 
thereafter  his  body  was  found  between  the  rails  of  the 
track  over  which  the  switch  engine  had  just  jjassed. 
There  was  no  evidence  of  a  negligent  failure  on  the  part 
of  the  engineer  or  tlie  fireman  on  the  switch  engine  to 
warn  him.  In  fact,  both  testified  that  they  did  not  see 
anybody  on  the  track.  Upon  these  facts  the  trial  court 
charged  the  jury  in  conformity  with  the  Florida  statute 
creating  a  presumption  of  negligence  upon  proof  of  an 
injuiy  in  the  operation  of  a  locomotive.  This  decision 
was  affirmed  by  the  supreme  court  of  Florida."  But  on 
writ  of  error  the  national  Supreme  Court  reversed  the 
judgment  without  opinion.'"  Upon  the  next  trial  the 
trial  court  again  instructed  the  jury  that  it  devolved  up- 
on the  defendant  to  prove  that  it  was  not  negligent,  and 
refused  to  instruct  that  the  burden  of  showing  the  de- 
cedent's death  was  due  to  negligence,  was  upon  the 
plaintiff.  Another  verdict  for  the  plaintiff  was  returned 
but  on  second  appeal,  the  judgment  entered  thereon  was 
reversed  by  the  Florida  supreme  court,  on  the  ground 
that  the  state  law  shifting  the  burden  of  proof  was 
superseded  as  to  all  interstate  employes  by  the  enact- 
ment of  the  federal  statute.^^  A  statute  of  the  state  of 
Arkansas  provides,  in  effect,  tliat  where   an  injury  is 

feet,    that    the    railway    company  ing  it,  the  burden  would  be  upon 

was  not  aware   of  its  existence;  the  defendant  to  show  that  it  used 

and,  until  it  has  shown  that  the  all  ordinary  and  reasonable  care 

railway  company  knew,  or,  in  the  and   diligence  to   prevent  the  in- 

exercise  of  ordinary  care,  should  jury     Alabama  Great  Southern  R. 

have  known,  of  the  defect,  it  is  (^q    y   xidwell,  sup<ra. 

not  charged  with  that  knowledge."  Contra:  Yazoo  &  M.  V.  R.  Co.  v. 

St.  Louis,  I.  M.  &  S.  R.  Co.  V.  In-  ^ujuns,  115  Miss.  343.  76  So.  147. 

gram,  124  Ark.  298,  187  S.  W.  ^^  Louisville  &  N.  R.  Co.  v. 
452. 


Rhoda,  71  Fla.  .o26,  71  So.  3G9. 
52.     Louisville   &   N.   R.   Co.  v. 


In  an  action  under  the  federal 

act   it  was   error  to  instruct  the  _ , 

iury     that   the    burden   of    proof  ^l^^^a.   238  U.   S.   608.   59  L.   Ed. 

was  upon  the  plaintiff  in  the  first  1487,  35  Sup.  Ct.  662   (men.  dec), 

instance  to  show  that  he  was  in-  53.     Louisville   &   N.    R.   Co.   v. 

jui-^d.  and    that,   upon    his   show-       Rhoda.  Fla.  ,  74  So.  19. 


948 


Injuetes  to  Intekstate  Employes. 


[^  540 


caused  by  the  operation  of  a  train,  a  prima  facie  case 
against  the  carrier  is  shown,  and  the  duty  is  then  cast 
upon  it  to  establish  due  care.  The  supreme  court  of 
that  state  held  that  the  statute  did  not  apply  in  an 
action  under  the  Federal  Employers' Liability  Act  and 
that  instructions  of  a  trial  court  applying  the  state  sta- 
tute were  erroneous.^* 

§  541.  Mississippi  "Prima  Facie"  Statute  Held 
Applicable  to  Actions  under  Federal  Act.  But  the  su- 
preme court  of  Mississippi  in  a  decision  not  in  harmony 
with  the  cases  cited  in  the  foregoing  paragraph,  has 
held  that  a  statute  of  that  state  providing  that  in  all 
actions  against  railroad  companies  for  damages  due  to 
persons,  proof  of  injury  inflicted,  by  the  running  of 
locomotive  cars  shall  be  prima  facie  evidence  of  negli- 
gence on  the  part  of  the  company,  governs  in  actions 
under  the  Federal  Employers'  Liability  Act.''  "Counsel 
for  appellant,"  said  the  court  in  this  case,  "urges  that 
our  prima  facie  statute  (section  1985,  Code  of  1906)  is 
not  applicable  in  the  case  before  us  because  this  suit  is 
governed  by  the  Federal  Employers'  Liability  Act,  and 
that  the  prima  facie  statute  is  not  a  rule  of  evidence,  but 


54.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  Steel,  129  Ark.  520,  15  N. 
C.  C.  A.  49,  197  S.  W.  288,  in 
which  the  court  said:  "For  the 
sake  of  uniformity,  the  decisions 
of  the  Supreme  Court  of  the  Unit- 
ed States  should  and  must  control 
in  determining  the  issue  of  neg- 
ligence where  the  Employers'  Lia- 
bility Act  governs;  for,  as  is  said 
by  Mr.  Roberts:  'Certainly  there 
must  be  some  controlling  author- 
ity in  determining  negligence  un- 
der this  act,  and  if  these  ques- 
tions are  left  to  be  determined 
according  to  the  admittedly  con- 
flicting decisions  of  the  courts  of 
the  several  states,  whose  rulings 
are  paramount  and  exclusive  in 
their  own  jurisdiction,  the  ques- 


tion as  to  when  a  carrier  is  neg- 
ligent under  the  federal  statute 
would  become  a  matter  of  the 
geography  of  the  states  and  not 
of  a  one  supreme  law  applying 
uniformly  within  its  exclusive  do- 
main.' 'Such  discrimination,'  he 
continues,  'would  defeat  one  of 
the  main  objects  of  the  national 
statute — one  uniform  rule  of  lia- 
bility in  all  the  states  where  a 
carrier  by  railroad  is  engaged  in 
interstate  commerce  to  its  servants 
while  employed  in  such  commerce.* 
Roberts'  Injuries  Interstate  Em- 
ployes, pp.  37,  38."  i 

55.  Yazoo  &  M.  V.  R.  Co.  v. 
Mullins,  115  Miss.  343,  76  So. 
147. 


<^  5-1:^1  NKfii.TOF.xr'E  Under  Fkdf.hat,    Act.  949 

that  it  is  a  sul)staiitive  law  and  gives  a  substantial  riglit 
in  conflict  \Yith  the  federal  act.  It  is  argued  that  the 
])rima  facie  statute  is  a  state  law  which  in  effect  creates 
a  liability  by  virtue  of  the  presumption  of  negligence 
from  the  infliction  of  injury  by  the  running  of  cars,  and 
that  this  statute  conflicts  with  the  federal  act  in  matters 
of  substance  affecting  liability,  and  is  not  a  mere  rule  of 
evidence.  The  recent  case  of  Louisville,  etc.,  R.  Co.  v. 
Rhoda  (Fla.)  74  8o.  19,  is  cited  as  authority  for  the 
position  taken  l)y  the  appellant.  We  have  reviewed  this 
case  and  several  others  cited  by  counsel,  and,  without 
entering  into  a  discussion  of  the  holding  in  the  Florida 
case,  we  are  clearly  of  the  opinion  that  our  prima  facie 
statute  is  not  in  conflict  with  the  federal  act,  but  that  it 
is  a  rule  of  evidence,  the  lex  fori,  and  as  our  state  courts 
have  concurrent  jurisdition  with  the  federal  courts  of 
causes  arising  under  the  federal  act  the  law  of  the  forum 
must  govern  in  the  trial  of  such  cases.  The  authorities 
cited  by  counsel  fail  to  convince  us  that  our  beneficent 
prima  facie  statute  is  inapplicable  to  cases  under  the 
federal  act.  We  therefore  announce  here  again  that  the 
statute  (section  1985,  Code  of  1906)  is  applicable  as  a 
rule  of  evidence  in  the  courts  of  our  state,  regardless  of 
whether  the  cause  of  action  arises  under  the  federal  act 
or  the   state   law\"^^* 

§  542.  Sufficiency  of  Evidence  of  Negligence  to 
Submit  Cause  to  Jury  not  Governed  by  Decisions  of 
State  Courts.  The  question  whether  there  is  sufficient 
evidence  of  negligence  for  the  cause  to  be  submitted  to 
the  jury  must  be  determined  by  applicable  common  law 
principles  as  interpreted  and  applied  in  the  national 
courts,  and  not  by  the  decisions  of  the  courts  of  the 
several  states  when   in   conflict   therewith  ;^^   for  one   of 

55a.    Contra,  New  Orleans  &  N.  applicable     to    actions    under    the 

E.  R.  Co.  V.  Harris,  246  U.  S. ,  federal  Act. 

62  L.  Ed.  ,  38  Sup.  Ct.  535,  in  50.    Union  Pac.  R.  Co.  v.  lluxall. 

which  the  court  held  that  the  Mis-       245  U.  S.  535,  62  L.  Ed.  ,  38 

issippi  "Prima  Facie  Act"  was  not  Sup.  Ct.   187;    Southern  R.  Co.  v. 


950 


Injuries  to  Intekstate  Employes.         [§  542 


the  purposes  of  Congress  in  the  enactment  of  the  Fed- 
eral Employers'  Liability  Act  was  to  have  a  uniform 
rule  throughout  the  United  States.  The  federal  deci- 
sions must,  therefore,  be  looked  to  to  determine  whether 
enough  facts  have  been  introduced  for  the  jury  to  infer 
negligence  as  that  question  involves  matters  of  sub- 
stantive law  and  not  procedure.  In  a  series  of  cases  be- 
fore the  supreme  court  of  South  Carolina,  it  has  been 
held  that  as  the  Federal  Employers'  Liability  Act  makes 
no  specific  regulation  as  to  the  quantity,  and  quality  of 
negligence  necessary  for  the  cause  to  be  submitted  to  the 
jury,  the  state  law  and  the  decisions  of  the  state  courts 
govern."  But  these  cases  announce  a  doctrine  that  is 
clearly  not  in  harmony  with  the  controlling  decisions  of 
the  national  Supreme  Court."* 

§  543.  Effect  of  State  Law  Prohibiting  Employ- 
ment of  Minors  in  Determining  Negligence.  A  statute 
of  a  state  prohibiting  the  employment  of  minors  under 
certain  ages,  and  prescribing  that  a  violation  thereof 
shall  be  prima  facie  evidence  of  negligence,  is  not  ap- 


Gray,  241  U.  S.  333,  60  L.  Ed. 
1030,  36  Sup.  Ct.  558;  Great  North- 
ern R.  Co.  V.  Wiles,  240  U.  S.  444, 
60  L.  Ed.  732,  36  Sup.  Ct.  406; 
Central  Vermont  R.  Co.  v.  White, 
238  U.  S.  507,  59  L.  Ed.  1433,  35 
Sup.  Ct.  865,  9  N.  C.  C.  A.  265; 
Ann.  Cas.  1916B  252;  Seaboard 
Air  Line  Ry.  Co.  v.  Horton,  233 
U.  S.  492,  58  L.  Ed.  1062,  34 
Sup.  Ct.  635,  8  N.  C.  C.  A.  834, 
L.  R.  A.  1915C  1,  Ann.  Cas.  1915B 

57.  Mulligan  v.  Atlantic  Coast 
Line  R.  Co.,  104  S.  C.  173,  88  S. 
E.  445;  Dutton  v.  Atlantic  Coast 
Line  R.  Co.,  104  S.  C.  16,  88  S. 
E.  263;  Koennecke  v.  Seaboard 
Air  Line  Ry.,  101  S.  C.  86,  85  S. 
E.  374;  Howell  v.  Atlantic  Coast 
Line  R.  Co.,  99  S.  C.  417,  83  S.  E. 
639;     Bennett   v.   Southern  Ry. — 


Carolina  Division,  98  S.  C.  42,  79 
S.  E.  710. 

58.  Southern  R.  Co.  v.  Pres- 
cott,  240  U.  S.  632,  60  L.  Ed.  836, 
36  Sup.  Ct.  469;  Southern  Exp. 
Co.  V.  Byers,  240  U.  S.  612,  60  L. 
Ed.  825,  36  Sup.  Ct.  410,  L.  R.  A. 
1917A  197;  Cleveland,  C,  C.  &  St. 
L.  R.  Co.  V.  Dettlebach,  239  U. 
S.  588,  60  L.  Ed.  453,  36  Sup.  Ct. 
177.  See  also  cases  cited  under 
Note  1,  supra.  In  Southern  R. 
Co.  V.  Prescott,  supra,  the  nation- 
al Supreme  Court  held  that  the 
rule  adopted  by  the  supreme  court 
of  South  Carolina  shifting  the  bur- 
den of  proof,  upon  certain  con- 
tingencies, in  actions  for  loss  or 
damage  to  interstate  shipments 
had  been  superseded  upon  the 
enactment  of  the  Carmack  amend- 
ment. 


§  544]  NK(;iJ(iEN("E  Under  Fedki^al   Act.  951 

plicablo  io  injiiiics  arisiii.u'  in  ijilcrstate  commerce  of  em- 
ployes work inu' for  common  carriei-sl)y  railroad.''"  In  an 
action  under  the  federal  act,  a  trial  court  j^ave  effect  to 
a  state  statute  foi-biddiiii;- the  cinploymcnt  of  minors 
under  18  between  10  |>.  in.  and  5  a.  m.  l^'or  this  error  the 
caiTse  was  reversed,  the  sui)i-('me  court  of  the  slate  hold- 
ing that  the  legislation  of  Congress  over  the  subject 
matter  of  interstate  commerce  could  not  be  su])j>h'inent- 
ed  by  state   laws   even  when  not  in   confhct   therewith."' 

§  544.  Applicability  of  Rule  of  Res  Ipsa  Loquitur 
to  Actions  under  Federal  Acts — Conflicting-  Rulings. 
As  construed  by  the  Supreme  Court  of  the  United  States, 
the  doctrine  of  res  ipsa  loquitur  means  that  the  facts  of 
the  occurrence  warrant  the  inference  of  negligence,  not 
that  they  compel  such  an  inference;  that  they  furnish 
circumstantial  evidence  of  negligence  where  direct 
evidence  of  it  may  l)e  lacking;  that  they  constitute 
evidence  to  be  weighed,  not  necessarily  to  be  accepted 
as  sufficient;  tliat  they  call  for  explanation  or  rebuttal, 
not  necessarily  that  they  require  it;  that  they  make  a 
case  to  be  decided  by  the  jury,  not  that  tliey  forestall 
the  verdict.  The  rule  does  not  convert  the  defendant's 
general  issue  into  an  affirmative  defense  and  when  all 
the  evidence  is  in,  the  question  is  still  for  the  jury  to  de- 
termine whether  the  ])reponderance  is  with  the  i)]ain- 
tiff.*^^  Ordinarily  in  actions  by  an  employe  against  an 
employer  for  damages  due  to  personal  injuries  for  fail- 
ing in  the  performance  of  duty,  the  mere  fact  of  the  in- 
jury raises  no  such  presum])tion  of  negligence  on  the 
part  of  the  emi)loyer  as  in  the  case  of  a  passenger  a- 
gainst  a  common  carrier,  and  the  l)urden  of  proving  neg- 
ligence rests  upon  the  plaint i IT;'-'  but  the  res  ipsa  lo- 
quitur doctrine  has  been  applied  in  a  qualified  form  and 

59.  Maijala  v.  Great  Northern  61.  Sweeney  v.  Erving.  22S  U. 
R.  Co.,  133  Minn.  301,  1.58  N.  W.  S.  233.  57  L.  Ed.  815,  33  Snp.  Ct. 
430.  416,  Ann.  Cas.  1914D  90,5. 

60.  Smithson  v.  Atchison.  T.  &  62.  Southern  Ry.-Carolina  Di- 
R.  F.  R.  Co..  174  Cal.  14S,  162  vision  v.  Bennett.  233  U.  S.  80. 
I'ac-    111-  58  L.  Ed.  860,  34  Sup.  Ct.  566,  10 


952 


Injuries  to  Interstate  Employes.         [^  544 


in  exceptional  cases  even  between  master  and  servant.®' 
Where  the  circumstances  of  an  accident  are  of  snch  a 
natnre  as  to  constitute  circumstantial  evidence  tending 
to  show  negligence,  the  rule  has  been  enforced.  The 
courts  are  not  in  harmony  as  to  the  applicability  of  the 
doctrine  in  actions  under  the  federal  act;  some  have 
gone  to  the  extent  of  holding  that  it  is  never  applicable 
to  actions  by  employes  against  carriers  under  the  federal 
act  while  others  hold  that  an  employe  is  entitled  to  the 
benefit  of  the  maxim  in  exceptional  cases  when  the  facts 
of  the  particular  case  warrant  an  inference  of  negli- 
gence."*   "In  its  extreme  application,"  said  Judge  Evans 


N.  C.  C.  A.  853;  Patton  v.  Texas 
&  P.  Ry.  Co.,  179  U.  S.  658,  45 
L.  Ed.  361,  21  Sup.  Ct.  275;  Texas 
&  P.  R.  Co.  V.  Archibald,  170  U. 
S.  665,  42  L.  Ed.  1188,  18  Sup.  Ct. 
777;  Texas  &  P.  R.  Co.  v.  Barrett, 
166  U.  S.  617,  41  L.  Ed.  1136,  17 
Sup.  Ct.  707;  Baltimore  &  P.  R 
Co.  V.  Mackey,  157  U.  S.  72,  39 
L.  Ed.  624,  15  Sup.  Ct.  491;  Union 
Pac.  R.  Co.  V.  Daniels,  152  U.  S. 
684,  38  L.  Ed.  597.  14  Sup.  Ct. 
756;  Baltimore  &  O.  R.  Co.  v. 
Baugh,  149  U.  S.  368,  37  L.  Ed. 
772,   13    Sup.   Ct.   914. 

"The  doctrine  of  res  ipsa  liqui- 
tur  is  inapplicable  to  actions  be- 
tween employers  and  employes 
for  negligence  or  other  wrongs. 
The  happening  of  an  accident 
which  injures  an  employe  raises 
no  presumption  of  wrong  or  neg- 
ligence by  the  employer."  Mid- 
land Valley  R.  Co.  v.  Fulgham 
104  C.  C.  A.  151,  181  Fed.  91,  L 
R.  A.  1917E  1;  citing  the  follow 
ing  cases:  Chicago  &  N.  W.  R 
Co.  V.  O'Brien,  67  C.  C.  A.  421 
132  Fed.  593;  Northern  Pac.  R 
Co.  V.  Dixon,  71  C.  C.  A.  555,  139 
Fed.  737;  Cryder  v.  Chicago,  R 
I.  &  P.  R.  Co.,  81  C.  C.  A.  559.  152 
Fed.  417. 


63.  United  States.  Southern  R. 
Co.  V.  Derr,  153  C.  C.  A.  109,  240 
Fed.  73;  Smith  v.  Pennsylvania 
R.  Co.,  151  C.  C.  A.  277,  239  Fed. 
103,  15  N.  C  C.  A.  371;  Lucid  v. 
E.  I.  Du  Point  de  Nemours  Pow- 
der Co.,  118  C.  C  A.  61  199,  Fed. 
377  L.  R.  A.  1917E  182;  Cincinnati, 
N.  O.  &  T.  P.  R.  Co.  V.  South 
Fork  Coal  Co.,  71  C.  C.  A.  316, 
139  Fed.  528,  1  L.  R.  A.  (N.  S.) 
533;  Westland  v.  Gold  Coin  Mines 
Co.,  41  C.  C.  A.  193,  101  Fed.  59. 

Iowa.     Basham  v.  Chicago  &  G. 

W.  Ry.  Co., Iowa  ,  154 

N.  W.  1019. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Allen's  Adm'r,  174  Ky.  736, 
192    S.   W.   863. 

Minnesota.  Manning  v.  Chicago 
Great  Western  R.  Co.,  135  Minn. 
229,  15  N.  C.  C.  A.  591,  160  N.  W. 
787. 

Washington.  Toler  v.  Northern 
Pac.  R.  Co.,  94  Wash.  360,  162 
Pac.    538. 

64.  United  States.  Minneapolis 
&  St.  L.  R.  Co.  V.  Gotschall,  244 
U.  S.  66  61  L.  Ed.  995,  37  Sup.  Ct. 
598,  14  N.  C.  C.  A.  865;  South- 
ern R.  Co.  V.  Derr,  153  C.  C.  A. 
109,  240  Fed.  73;  Smith  v.  Penn- 
sylvania R.  Co.,  151  C.  C.  A.  277, 


<§>  544]  NjXiiJGENCE  Under  Federal  Act.  953 

of  the  Iowa  Supreme  Court,"'  "this  doctrine  (res  ipsa 
hj(iuitur)  would  permit  the  mere  fact  of  an  accident  to 
be  deemed  as  prima  facie  evidence  of  negligence  as  the 
cause  tlioroof.     Tn  this  form  tlie  doctrine  lias  not  been 


239  Fed.  103,  15  N.  C.  C.  A.  371; 
Midland  Valley  R.  Co.  v.  Fulgham, 
104  C.  C.  A.  151,  181  Fed.  91,  L. 
R.   A.   1917E   1. 

Florida.     Louisville  &  N.  R.  Co. 

V.    Rhoda,   Fla.   ,    74   So. 

19. 

Iowa.     Hunt  v.  Chicago,  B.  &  Q. 

R.  Co.,  Iowa  ,  165  N.  W. 

105. 

Minnesota.  Manning  v.  Chicago 
Great  Western  R.  Co.,  135  Minn. 
229,  15  N.  C.  C.  A.  591,  IGO  N. 
W.  787. 

New  York.  Tyndall  v.  New  York 
Cent.  &  H.  River  R.  Co.,  157  N. 
Y.  App.  Div.  186,  141  N.  Y.  Supp. 
879. 

North  Carolina.  Ridge  v.  Nor- 
folk Southern  R.  Co.,  167  N.  C. 
510,  L.  R.  A.  1917E  215,  83  S.  E. 
762. 

"It  may  be  conceded  at  the  out- 
set that  the  res  ipsa  loquitur  doc- 
trine, strictly  speaking,  and  con- 
fined strictly  within  the  reasons 
calling  for  its  application,  does 
not  prevail  in  controversies  be- 
tween master  and  servant.  This 
is  perhaps  more  particularly  so 
as  to  its  application  by  the  fed- 
eral courts.  That  doctrine  is 
that  negligence  may  be  presumed 
or  inferred  from  the  mere  hap- 
pening of  the  accident,  and  that, 
although  the  burden  is  upon  the 
plaintiff  to  establish  negligence, 
still,  in  certain  cases  where  it  is 
applicable,  proof  of  the  accident 
is  sufficient  for  that  purpose  and 
shifts  the  burden  upon  the  de- 
fendant to  explain  away  the 
prima  facie  case  made  by  the  pre- 


sumption. The  reason  why  the 
rule  embodied  in  the  maxim  is 
most  generally  held  not  to  apply 
as  between  master  and  servant  is 
that  the  mere  happening  of  the 
accident  does  not  indicate 
whether  it  resulted  from  any  of 
causes  for  which  the  master  would 
be  liable  or  from  some  cause 
that  the  servant  assumed  or  for 
which  he  was  responsible.  The 
modern  tendency,  however,  is 
that  even  as  between  master  and 
servant,  were  the  thing  which 
caused  the  injury  is  shown  to 
be  under  the  management  or 
control  of  defendant  or  its  ser- 
vants other  than  the  one  injured, 
and  the  accident  is  such  as,  in 
the  ordinary  course  of  things, 
does  not  happen  if  those  who 
have  the  management  or  control 
use  proper  care,  slight  circum- 
stances pointing  toward  negli- 
gence on  behalf  of  the  defendant 
will  authorize  a  submission  of 
the  question  of  its  negligence  to 
the  jury.  In  other  words,  where 
the  evidence  shows  that  the  acci- 
dent is  necessarily  the  result  of 
defective  conditions  and  can  be 
explained  upon  no  other  reason- 
able hypothesis,  circumstances  in- 
dicating carelessness  on  the  part 
of  defendant  will  produce  such  a 
condition  as  to  authorize  the  sub- 
mission of  the  case  to  the  jury." 
Louisville  &  N.  R.  Co.  v.  Allen's 
Adm'r,  174  Ky.  736,  192  S.  W. 
863. 

65.     Hunt   v.   Chicago,    B.   &   Q. 

R.    Co.,    Iowa   ,    165    N. 

W.  105. 


954-  Ix.TUEiES  TO  Interstate  Employes.         [^  544 

favored  by  the  courts,  and  its  application  has  been  con- 
fined to  a  very  limited  field;  its  most  common  and 
prominent  application  being  in  favor  of  a  passenger 
against  a  common  carrier.  See  Case  v.  Railway  Co.,  64 
Iowa,  762,  21  N.  W.  30;  Baldwin  v.  Railway  Co., '68  Iowa, 
37,  25  N.  W.  918;  Knhns  v.  Railway  Co.,  70  Iowa,  565, 
31  N.  W.  868;  O'Connor  v.  Railway  Co.,  83  Iowa,  105. 
48  N.  W.  1002;  Haden  v.  Railway  Co.,  99  Iowa,  735,  48 
N.  W.  733;  Brownfield  v.  Railway  Co.,  107  Iowa,  254,  77 
N.  W.  1038.  In  this  form  it  has  not  been  deemed  ap- 
plicable to  master  and  servant  cases.  But  there  has  been 
quite  uniform  tendency  in  the  courts  to  give  recognition 
to  the  doctrine  in  a  qualified  form  and  to  extend  its  ap- 
plicability accordingly.  Marceau  v.  Railway  Co.,  211 
N.  Y.  203,  105  N.  E.  207,  51  L.  R.  A.  (N.  S.)  1221,  Ann. 
Cas.  1915C,  511.  The  doctrine  in  such  qualified  form  is, 
not  that  the  mere  fact  of  an  accident  is  of  itself  evidence 
of  negligence  as  a  cause  thereof,  but  that  the  nature  of 
an  accident  in  manner  and  circumstance  may  be  such  as 
to  indicate  negligence  as  a  cause  thereof;  that  is  to  say, 
that  the  circumstances  of  an  accident  may  be  of  such  a 
nature  as  to  constitute  circumstantial  evidence  tending 
to  show  negligence.  Some  accidents,  therefore,  may  be 
of  such  a  nature  as  to  render  the  doctrine  applicable, 
while  other  accidents  may  be  of  such  a  nature  as  to 
render  it  inapplicable.  In  considering  this  question,  it 
must  be  borne  in  mind  that  it  is  not  the  fact  of  injury 
of  a  plaintiif  which  gives  rise  to  the  application  of  the 
doctrine  but  it  is  the  accidental  event  from  which  the 
injury  resulted.  Fitch  v.  Traction  Co.,  124  Iowa,  668, 
100  N.  W.  618;  Cahill  v.  I.  C.  Ry.  Co.,  148  Iowa,  241,  125 
N.  W.  331,  28  L.  R.  A.  (N.  S.)  1121;  Thomas  v.  Railway 
Co.,  193  Mass.  438,  79  N.  E.  749;  Wyatt  v.  Railway  Co., 
156  Cal.  170,  103  Pac.  892;  Levin  v.  Railway  Co.,  228 
Pa.  266,  77  Atl.  456;  Eisentrager  v.  Great  Northern,  160 
N.  W.  311,  L.  R.  A.  1917B,  1245.  Where  an  accident  is 
in  its  nature  and  circumstances  separable  in  identity 
from  the  injury  of  a  complaining  plaintiff,  it  is  these 
circumstances  that  are  looked  to,  to  determine  the  ap- 
plicability of  the  doctrine  in  question.     The  derailment 


'^  545J         Nkclkjenc'E   Undkh    Fkuehal   Act.  95j 

of  a  train;  a  collision  of  trains;  an  ovorturnod  coach;  a 
broken  bridge — tliosc  arc  illustrative  of  accidents  wbicli 
are  often  attended  with  circumstances  indicalino:  their 
cause,  and  which  would  ])e  deemed  as  accidents,  even 
ihou.uh  they  had  not  resulted  in  injury  to  the  particular 
])hiintilT.  If  tlie  circumstances  disclosed  are  not  such  as 
tend  to  indicate  ne^li^ence,  then  they  cannot  be  deemed 
to  speak.  If  they  do  tend  to  indicate  ne,a:li^^ence,  they 
do  si^eak  as  circumstances  only,  and  to  that  extent  the 
doctrine  becomes  applicable.  When  thus  applicable,  we 
see  no  reason  why  it  may  not  be  api^licable  in  master 
and  servant  cases  within  appropriate  limits.  This  is 
especially  so  in  cases  where  the  defenses  of  contributory 
negligence  and  the  fellow  servant  rule  are  abrogated. 
But  it  is  also  true  that  the  scope  of  its  operation  must 
ordinarily  be  narrower  in  master  and  servant  cases  than 
in  cases  between  common  carrier  and  passenger,  because 
the  mutual  obligations  between  master  and  servant  are 
by  no  means  identical  with  those  that  obtain  betw^een 
carrier  and  passenger." 

§  545.  Recovery  Cannot  be  Defeated  When  De- 
fendant's Negligence  is  Part  of  Causation.  A\'hile  a 
carrier  is  not  liable  under  the  federal  act  when  its  negli- 
gent act  is  no  part  of  the  causation,  it  is  liable  in 
damages  for  an  injury  resulting  in  whole  or  in  part  from 
its  negligence.""    If  the  injury  was  caused  in  whole  or  in 

66.     United  States.     Union  Pac.  Cole,    131   C.   C   A.    244,   214   Fed. 

R.   Co.   V.   Hadley,   246   U.  S.  330,  948;  Smith  v.  Atlantic  Coast  Line 

62   L.   Ed.  ,   38   Sup.   Ct.   318,  R.  Co.,  127  C.  C.  A.  311,  210  Fed. 

Aff'g  99  Neb.  349,  156  N.  W.  765;  761. 

Great  Northern  R.  Co.  v.  Knapp,  Alabama.      Southern    R.    Co.    v. 

240   U.   S.   464,   60   L.   Ed.   74.5,   36  Peters,    194    Ala.    94,    69    So.    611. 

Sup.  Ct.  399;    Southern  R.  Co.  v.  Arkansas.     Lusk  v.  Osborn.  127 

Maryland,  152  C.  C.  A.  91,  239  Fed.  Ark.  170,  191  S.  W.  944. 

41;    Philadelphia  &   R.   R.    Co.   v.  Iowa.     Carrigan   v.   Union   Pac. 

Maryland,  152  C.  C.  A.  51,  239  Fed.       R.  Co.,  Iowa  ,  162  N..W. 

1,   15  N.  C.  C.   A.  402;    St.   Louis  571. 

Merchants'    Bridge    Terminal    R.  Georgia.     Louisville  &  N.  R.  Co. 

(^o.  V.  Schuerman,  150  C.  C.  A.  203,  v.   Pa.schal.   145  Ga.  521.  89  S.  E. 

237    Fed.    1;    Pennsylvania  Co.  v.  620;     Charleston   &   W.  C.   R.   Co. 


956 


Injuries  to  Interstate  Employes.         ['^  545 


part  from  the  compauy's  negligence,  the  statute  cannot 
be  nullified  and  the  right  of  recovery  defeated  by  calling 
a  plaintitf's   act   the   proximate   cause   of   the   injur^^'" 


V.    Sylvester,    17    Ga.   App.    85,   86 
S.    E.    275. 

Kansas.  Pyles  v.  Atchison.  T. 
&  S.  F.  R.  Co..  97  Kan.  455,  155 
Pac.  788;  Hackney  v.  Missouri, 
K.  &  T.  R.  Co.,  96  Kan.  30,  149 
Pac.  421. 

Kentucky.  Lexington  &  E.  R.  Co. 
V.  Smith's  Adm'e.  172  Key.  117,  188 
S.  W.  1091. 

Maryland.  Baltimore  &  0.  R. 
Co.  V.  Branson,  128  Md.  678,  98 
Atl.   225. 

Micliigan.  Chapman  v.  United 
States  Exp.  Co.,  192  Mich.  654, 
159  N.  W.  308;  Holmberg  v.  Lake 
Shore  &  M.  S.  R.  Co.,  188  Mich. 
605,   155   N.  W.   504. 

l^ssouri.  Brightwell  v.  Lusk. 
194  Mo.  App.  643,  189  S.  W.  413; 
Koukouris  v.  Union  Pac.  R.  Co., 
193  Mo.  App.  495,  186  S.  W.  545; 

Delano  v.  Roberts.  Mo.  App. 

,  182   S.   W.  771. 

Montana.  Sorenson  v.  Northern 
Pac.  R.  Co.,  53  Mont.  268,  163 
Pac.  560. 

Nebraska.  Hadley  v.  Union 
Pac.  R.  Co.,  99  Neb.  349,  156  N. 
W.  765. 

New  York.  McAuliffe  v.  New 
York  Cent.  &  H.  River  R.  Co.,  172 
N.  Y.  App.  Div.  597,  158  N.  Y. 
Sup.  922. 

North  Dakota.  Manson  v.  Great 
Northern  R.  Co.,  31  N.  D.  643,  155 
N.  W.  32. 

South  Dakota.  Fletoher  v.  South 
Dakota  Cent  R.  Co.,  36  S.  D.  401, 
155  N.  W.  3. 

Vermont.     Robie  v.  Boston  &  M. 

R.   R.,  ■ Vt.  ,   100  Atl.   925 

Virginia.  Going's  Adm'x  v.  Nor- 
folk &  W.  R.  Co.,  119  Va.  543,  89 
S.   E.   914. 


Washington.  Papoutsikis  v.  Spo- 
kane, P.  &  S.  R.  Co.,  89  Wash.  1, 
153   Pac.    1053. 

West  Virginia.  Hull  v.  Virginian 

R.  Co.    78  W.  Va.  25,  88  S.  E.  1060. 

Wisconsin.     Molzoff  v.   Chicago, 

M.  &  St.  P.  R.  Co.,  162  Wis.  451. 

11  N.  C.  C   A.  273,  156  N.  W.  467. 

Under  the  federal  act  the  de- 
fendant is  liable  in  damages  to  the 
plaintiff  for  an  injury  if  caused 
in  whole  or  in  part  by  the  de- 
fendant's negligence.  The  defend- 
ant can  escape  liability  only  in 
case  where  there  is  no  negligence 
whatever  on  its  part  causing  or 
contributing  to  the  employe's  in- 
jury. Going's  Adm'x  v.  Norfolk 
&  N.  Ry.  Co.,  supra. 

67.  Spokane  &  E.  I.  R.  Co.  v. 
Campbell,  133  C.  C.  A.  370,  217 
Fed.  518;  Louisville  &  N.  R.  Co. 
V.  Wene,  121  C.  C.  A.  245,  202  Fed. 
887;  Grand  Trunk  Western  R.  Co. 
V.  Lindsay,  120  C.  C.  A.  166,  201 
Fed.  836;  s  c.  233  U.  S.  42,  58  L. 
Ed.  833,  34  Sup.  Ct.  581,  Ann.  Cas. 
1914C  168;  Pankey  v.  Atchison, 
T.  &  S.  F.  R.  Co.,  180  Mo.  App. 
185,  6  N.  C.  C.  A.  74,  168  S.  W. 
274. 

"If  under  the  Employers'  Lia- 
bility Act,  plaintiff's  negligence, 
contributing  with  defendant's  neg- 
ligence to  the  production  of  the 
injury,  does  not  defeat  the  cause 
of  action,  but  only  lessens  the 
damages,  and  if  the  cause  of  action 
is  established  by  showing  that  the 
injury  resulted  'in  whole  or  in 
part'  from  defendant's  negligence, 
the  statute  would  be  nullified  by 
calling  plaintiff's  act  the  proximate 
cause,  and  then  defeating  him, 
when  he  could  not  be  defeated  by 


^  545]         Negligence   Under   Federal  Act.  957 

This  princi])le  was  well  explained  by  the  federal  Su- 
preme Court  in  Illinois  Cent.  R.  Co.  v.  Skaggs,"^  wherein 
a  recovery  by  a  brakeman  injured  when  an  engine,  being 
moved  in  response  to  his  signal,  "side-swiped"  a  car  on 
an  adjoining  track,  was  aflirmed.  *'It  is  contended," 
said  the  court,  ''that  the  state  court  erred  in  permitting 
a  recovery  under  the  Federal  slat  tile  for  the  reason  that 
the  injury  resulted  from  Skaggs'  own  act,  or  from  an  act 
in  which  he  participated.  The  company,  it  is  said,  'can- 
not be  negligent  to  an  employee  whose  failure  of  duty 
and  neglect  produced  the  dangerous  condition.'  It  may 
be  taken  for  granted  that  the  statute  does  not  contem- 
plate a  recovery  by  an  employee  for  the  consequences  of 
action  exclusively  his  own;  that  is,  where  his  injury  does 
not  result  in  whole  or  in  part  from  the  negligence  of  any 
of  the  officers,  agents  or  employees  of  the  employing 
carrier  or  by  reason  of  any  defect  or  insufficiency,  due  to 
its  negligence,  in  its  property  or  equipment.  April  22, 
1908,  35  Stat.  65.  But,  on  the  other  hand,  it  cannot  be 
said  that  there  can  be  no  recovery  simply  because  the 
injured  employee  participated  in  the  act  which  caused 
the  injuiy.  The  inquiry  must  be  whether  there  is  neg- 
lect on  the  part  of  the  employing  carrier,  and,  if  the  in- 
jury to  one  employee  resulted  'in  whole  or  in  part'  from 
the  negligence  of  any  of  its  other  employees,  it  is  liable 
under  the  express  terms  of  the  act.  That  is,  the  statute 
abolished  the  fellow-servant  rule.  If  the  injury  was  due 
to  the  neglect  of  a  co-employee  in  the  performance  of 
his  duty,  that  neglect  must  be  attributed  to  the  em- 
ployer; and  if  the  injured  employee  was  himself  guilty 
of  negligence  contributing  to  the  injury  the  statute  ex- 
pressly provides  that  it  'shall  not  bar  a  recovery,  but  the 
damages  shall  be  diminished  by  the  jury  in  proportion 
to  the  amount  of  negligence  attributable  to  such  em- 

calling   his   act  contributory   ncg-  tion — that  defendant  is  free  from 

ligence.    For  his  act  was  the  same  liability    under   the   act."     Grand 

act,  by  whatever  name  it  be  called.  Trunk  Western  R.  Co.  v.  Lindsay, 

It   was   only   when   plaintiff's  act  supra. 

is    the   sole    cause -when    defend-  68.     240  U.  S.  66,  60  L.  Ed.  528, 

ant's  act  is  no  part  of  the  causa-  '^t'^  Sup.  Ct   249. 


958  Injuries  to  Inteestatb  Employes.         [§  545 

plove.'  See  Second  Employers'  Liability  Cases,  223 
U.  S.  1,  49,  50;  Seaboard  Air  Line  v.  Tilgliinan,  237  U.  S. 
499,  501.  We  think  that  the  argument  for  the  plaintiff 
in  error  overlooks  the  inferences  of  fact  wliich  the  jury 
was  entitled  to  draw.  Thus,  the  jury  could  properly  re- 
gard the  two  brakemen  as  assisting  each  other  in  the 
movement  in  question.  Such  assistance  was  certainly 
appropriate,  if  not  absolutely  necessary.  The  very  pur- 
pose of  having  two  brakeman  was  not  to  put  upon  either 
the  entire  responsibility.  Working  together  under  .the 
exigencies  of  such  operations,  particularly  when  con- 
ducted in  the  night  time,  it  was  manifestly  contemplated 
that  the  one  brakeman  would  supplement  the  other  and 
not  be  compelled  at  the  peril  of  his  rights  personally  to 
examine  what  the  other  did  or  the  basis  of  the  reports 
the  other  gave.  Each  had  a  reasonable  latitude  in  re- 
lying upon  the  statements  of  the  other  made  in  the 
course  of  the  operation  and  as  a  part  of  it.  The  Su- 
preme Court  of  the  State  said:  'It  was  a  very  dark 
night,  and  evidently  there  was  necessity  for  haste.  If 
plaintiff's  story  is  true,  Buchta  was  in  a  position  to 
know  about  clearance,  while  plaintiff  was  not;  and  we 
are  unable  to  say  plaintiff  had  not  the  right  to  rely  upon 
his  statement  in  regard  thereto.'  In  this  we  find  no  er- 
ror. When  the  engine  was  uncoupled,  Skaggs  was  on 
the  right-hand  side,  while  Buchta  was  on  the  other  side, 
^the  side  of  the  passing  track — a  better  place  to  judge 
the  clearance.  The  fact  that  Skaggs  asked  his  question 
is  itself  not  without  significance.  These  questions  in- 
dicated doubt  on  Skaggs'  part,  while  Buchta 's  reply 
showed  certainty  on  his.  It  was  plainly  permissible  to 
infer  from  the  testimony  that  the  two  men  were  not  in 
positions  of  equal  advantage,  and  Skaggs  was  entitlecj  to 
the  exercise  of  reasonable  care  on  the  part  of  Buchta  in 
observing  and  reporting  the  position  of  the  cars.  As 
there  was  evidence  upon  which  it  could  be  found  that 
Buchta  was  negligent,  and  that  thereby  injury  resulted 
to  Skaggs,  it  cannot  be  said  that  the  recovery  in  this 
aspect  of  the  case  was  contrary  to  the  statute." 


§  54G] 


Nl'XJLIGENCE    UnDKR    FeDEKAL    AcT. 


959 


§  546.  Casualties  Due  to  Sole  Negligence  of  Employe, 
No  Recovery  under  Federal  Act.  If  llie  sole  cause  of  an 
employe's  injury  or  death  is  his  own  act  whether  n('«^li- 
gQ.nt  or  not,  there  can  be  no  recovery  under  the  federal 
act.""  l^'or  instance,  a  recovery  was  denied  upon  this 
jirinciplo  uiidcr  tlic  following-  facts:  deceased,  a  flagman, 


tJ9.  United  States.  Great  Nor- 
thern R.  Co.  V.  Wiles,  240  U.  S. 
444,  60  L.  Ed.  732,  36  Sup.  Ct. 
406;  Illinois  Cent.  R.  Co.  v.  Skaggs, 
240  U.  S.  66,  60  L.  Ed.  528,  36 
Sup.  Ct.  249;  Grand  Trunk  West- 
ern R.  Co.  V.  Lindsay,  233  U.  S. 
42,  58  L.  Ed.  838,  34  Sup.  Ct.  581, 
Ann.  Cas.  1914C.  168;  Southern 
Ry.  Co.  V.  Mays,  152  C.  C.  A.  91, 
239  Fed.  41;  Philadelphia  &  R.  R. 
Co.  V.  Marland,  152  C.  C.  A.  51, 
239  Fed.  1,  15  N.  C.  C.  A.  402; 
Virginian  R.  Co.  v.  Linkous,  148 
C.  C.  A.  543,  235  Fed.  49;  Virgin- 
ian R.  Co.  V.  Linkous,  144  C.  C.  A. 
386,  230  Fed.  88. 

Alabama  Southern  R.  Co.  v. 
Peters,  193  Ala.  94,  69  So.  611. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
R.   Co.  V.   Stewart,   124   Ark.   437, 

187  S.  W.  920 

Georgia.  Louisville  &  N.  R.  Co. 
V.  Paschal,  145  Ga.  521,  89  S.  E. 
620;  Charleston  &  W.  C.  R.  Co.  v. 
Sylvester,  17  Ga.  App.  85,  86  S. 
E.  275. 

Iowa.  Dodge  v.  Chicago  Great 
Western  R.  Co.,  164  Iowa  627,  146 
N.  W.  14. 

Kentucky.  Norfolk  &  W.  R. 
Co.  v.  Short's  Adm'r,  171  Ky.  647, 

188  S.  W.  786;  Kentucky  &  T.  R. 
Co.  V.  Minton,  167  Ky.  516,  180 
S.  W.  831;  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  V.  Swann's  Adm'x, 
160  Ky.  458,  L.  R.  A.  1915C  27, 
169  S.  W.  886;  Ellis's  Adm'r  v. 
Louisville,  H.  &  St.  L.  R.  Co.,  155 
Ky.  745,  160  S.  W.  512. 


Louisiana.  Absheir  v.  Louisiana 
l?y.  &  Nav.  Co.  141  La.  194,  74  So. 
901. 

Maryland.  Haltimore  &  0.  R. 
Co.  V.  Branson,  128  Md.  678,  98  Atl. 
225. 

Massachusetts.  Gillis  v.  New 
York,  N.  H.  &  H.  R.  Co.,  224  Mass. 
541,   113  N.   E.   212. 

Missouri.  Winslow  v.  luissouri, 
K.  &  T.   Ry.  Co.   (Mo.  App  ),  192 

S.  W.  121;  Delano  v.  Roberts, 

Mo.    App.    ,    182    S.    W.    771; 

Trowbridge  v.  Kansas  City  &  W. 
B.  Ry.  192  Mo.  App.  52,  179  S. 
W.  777. 

Montana.  Sorenson  v.  Northern 
Pac.  R.  Co.,  53  Mont.  268,  163 
Pac.    560. 

New     Hampshire.         Wilson     v. 

Grand  Trunk  Ry.  Co.,  N.  H. 

,    97    Atl.    98L 

North  Carolina.  Hinson  v. 
Atlanta  &  C.  Air  Line  R.  Co.,  172 
N.  C.  646,  90  S.  E.  772. 

South  Dakota.  Fletcher  v.  South 
Dakota  Cent.  R.  Co.,  36  S.  D.  401 
155  N.  W.  3. 

Virginia.  Virginia  &  S.  W.  R. 
Co.  V.  Hill.  119  Va.  837,  89  S.  E. 
895;  Virginian  Ry.  Co.  v.  An- 
drews' Adm'x  118  Va.  482,  87 
S.  E.  577. 

Washington.  Bjornsen  v.  Nor- 
thern Pac.  R.  Co.,  84  Wash.  220, 
146   Pac.   575. 

West  Virginia.  Hull  v.  Virginian 
R.  Co..  78  W.  Va.  25,  88  S.  E.  1060; 
Easter  v.  Virginian  R.  Co..  76  W. 


960  Injuries  to  Interstate  Employes.         [<§  546 

was  sent  by  a  bridge  foreman  a  certain  distance  on  the 
track  from  a  bridge  on  wliicli  repairs  were  being  made, 
to  protect  the  bridge  crew  by  "flagging"  all  passing 
trains.  While  on  duty  he  was  struck  and  killed  by  a 
train  approaching  from  the  direction  of  the  bridge.  In 
an  action  for  damages  under  the  federal  act,  it  was  claim- 
ed that  his  death  was  due  in  part  to  the  negligence  of 
the  employes  in  charge  of  the  train  in  failing  to  keep 
a  lookout  and  to  give  a  reasonable  warning  of  the  ap- 
proach of  the  train;  l^ut  the  court  held  that  the  de- 
fendant did  not  owe  the  decedent  the  duty  of  keeping  a 
lookout  for  him  and  as  there  was  no  evidence  that  the 
train  operatives  actually  saw  him  in  a  position  of  peril 
in  time  to  have,  by  exercising  ordinary  care,  prevented 
his  death,  a  verdict  of  the  jury  for  defendant  was  ap- 
proved. In  the  course  of  the  opinion,  the  court  said: 
"When  a  flag-man  is  sent  out  to  watch  for  train  and 
warn  them  of  danger,  the  company  and  its  trainmen  have 
a  right  to  presume  that  he  will  not  only  watch  for  trains 
but  also  for  his  own  safety  and  his  failure  to  do  this  is 
his  own  negligence"  and  "if  one's  death  is  caused  solely 
by  his  own  negligence,  he  cannot  recover  under  either 
the  state  law  or  the  Federal  Employers'  Liability  Act."^° 
In  another  case  under  the  federal  act  the  Kansas  City 
Court  of  Appeals  held  that  there  was  no  liability  for  the 
death  of  a  brakeman  who,  having  signaled  the  engineer 
to  slow  down  the  speed  of  a  backing  train  on  a  curve  at 
night  voluntarily  placed  himself  in  a  place  of  danger 
between  the  moving  cars  and  a  freight  loading  platform 
where  he  could  not  signal  the  engineer  and  could  not 
have  been  seen  by  him  because  of  the  curve,  and  was 
crushed  to  death  between  the  platform  and  a  side  of  a 
moving  car  as  he  was  attempting  to  vault  onto  the  plat- 

Va.  383,  11  N.  C.  C.  A.  101,  86  S.  accident,  or  was  due  solely  to  his 

E.  37.                        .  own  negligence,   there  can  be  no 

The  right  of  recovery  under  the  recovery.      Gulp   v.    Virginian    R. 

federal    act    depends   upon   negli-  Co.,  77  W.  Va.  125,  87  S.  E.  187. 

gence    for    which    the   carrier    is  70.     Ellis's  Adm'r  v.  Louisville, 

made    liable,    and    if    deceased's  h.  &  St.  L.  R.  Co.,  155  Ky.  745.  160 

death   was   the   result  of  a  mere  S.  W.  512. 


§  547]  Xkcligence  Under  Fkdkkai.   Act.  Ofil 

fonii.  There  was  a  safe  place  for  llie  decedent  to  stand 
on  the  opposite  side  of  tlie  track  where  there  was  no  ob- 
struction. Discussing  tlie  legal  eiTect  of  these  facts, 
Jndg'c^  Trimble,  for  the  court,  said:  "Under  the 
(h'rdci-al)  Employers'  Liability  Act,  if  there  was  negli- 
gence on  tlie  pait  of  tile  defendant,  conliibiitoiy  negli- 
gence of  the  deceased  does  not  bar  a  recovery  but  only 
diminishes  the  damages  in  i)roi)ortion  to  the  amount  of 
negligence  attributable  to  such  employe.  Where,  however, 
there  is  no  negligence  on  the  part  of  the  master,  but  tlie 
injury  is  solely  the  result  of  the  employe's  negligence, 
there  can  be  no  recovery.  That  such  is  the  case  here  we 
think  there  can  be  no  doubt.  Pankey  gave  the  slow  sig- 
nal and  then  went  from  a  place  of  safety,  and,  without 
notice  or  intimation  to  anyone,  placed  himself  in  an  ex- 
ceedingly dangerous  situation.  He  was  not  required  to 
do  this  in  the  performance  of  his  work.  And,  when  the 
danger  of  his  situation  evoked  a  warning  from  his  con- 
ductor, he  voluntarily  chose  a  dangerous  instead  of  an 
easier  and  a  surely  safe  way  out.  This  last  was  in  it- 
self negligence  ".^^ 

§  547.  Foregoing  Principle  Futher  Illustrated  and 
Applied.  It  is  not  the  purpose  of  the  statute  to  af- 
ford relief  where  one's  injury  is  due  solely  to  his  own 
reckless  and  indifferent  conduct.'-  In  the  cited  case  it 
appeared  that  an  engineer  ran  his  train  beyond  a 
station  at  which  he  had  been  ordered  to  meet  another 
train  and  a  collision  followed.  The  engineer  disregarded 
the  dispatcher's  orders  for  the  meeting  point  apparently 
with  the  full  knowledge  of  the  other  members  of  the 
crew  as  the  conductor  and  the  head  brakeman  were  rid- 
ing on  the  engine,  and  copies  of  the  train  orders  as  to 
the  meeting  point  were  found  on  the  persons  of  the  en- 
gineer and  the  conductor  when  their  bodies  were  re- 
moved from  the  wreck.  Said  the  Court:  "It  is  in- 
sisted by  counsel  for  plaintiff  in  the  case  at   bar  that 

71.     Pankey  v.  Atchison,  T.  &  S.  72.    Virginian  R.  Co.  v.  Linkous 

F.   R.  Co.,  180  Mo.  App.  185,  6  N.        144  C.  C.  A.  386.  230  Fed.  88. 
C.   C.   A.   74,   168   S.   W.   274. 

1    Control   Carrlfis   CI 


962  IxjuiuES  TO  Inteestate  Employes.         [§  547 

plaintiff's  decedent  lost  his  life  'as  a  result  of  a  combin- 
ed mntnal,  concurring,  and  joint  failure  of  these  four  men 
to  fulfill  their  primary  duty  hj  executing  the  order 
to  meet  Xo.  '.VS  according  to  its  tenns  and  as  prescribed 
by  the  defendant's  rules,  which  was  the  controlling  and 
proximate  cause  of  the  collision.'  *  *  *  While  the 
Emitloyers'  Liability  Act  was  manifestly  intended  to 
modify  the  law  as  it  formerly  existed  so  as  to  materially 
benefit  those  who  might  be  injured  in  the  future,  by 
abolishing  the  harsh  rule  known  as  the  'Fellow-Servant 
Doctrine,'  yet  it  cannot  be  reasonably  insisted  that  it 
was  the  purpose  of  the  act  to  afford  relief  where  one's 
injury  is  due  solely  to  his  own  reckless  and  indifferent 
conduct.  After  an  exhaustive  examination  of  the  au- 
thorities cited  we  find  nothing  to  suppose  the  contentions 
of  the  plaintiff.  Under  the  circumstances  the  jury  could 
not  reasonably  have  drawn  any  other  inference  than  that 
the  other  employes  were  not  in  any  degree  primarily 
responsible  for  the  accident.  Such  being  the  case,  we 
are  of  opinion  that  the  jury  was  not  warranted  in 
reaching  the  conclusion  that  plaintiff' 's  decedent's  death 
resulting  in  whole  or  in  part  from  the  negligence  of  the 
employes  of  the  defendant." 

§  548.     Cases    Under    Federal  Act  in    Which  the 
Facts  were  Held  to  Show  Actionable  Negligence.     In  the 

following  actions  for  damages  under  the  federal  act  it 
was  held  that  the  facts  summarized  warranted  an  in- 
ference of  negligence  sufficient  to  submit  the  question  to 
a  jury.  A  railroad  bridge  which  had  been  weakened 
because  some  of  the  wooden  supports  under  it  had  been 
consumed  by  fire  collapsed  when  an  engine  attached  to  a 
rotary  snow  plow  passed  over  it,  causing  the  death  of 
the  engineer.  The  defendant's  negligence  was  held  to  be 
a  jury  question."  Decedent,  a  switchman  in  the  employ 
of  a  railroad  company  while  engaged  in  making  up  an 
interstate  train,  was  run  over  and  killed  by  a  "road" 

73.     Copper   River  &   N.   W.   R.       Co.  v.  Reed,  128  C.  C.  A.  39,   211 

Fed.   111. 


§    548]  NhXJLKiKNCE     UnDKK    P'EDKIiAL    AcT.  9G3 

en^nno  iispd  at  the  time  in  switching.     This  engine  was 
ecjuipped  wtli  a  pilot  and  did  not  liave  a  front  footboard 
with  which  regular  switch  engines  in  railroad  yards  are 
usually  e(inij)ped.      Decedent  fell   from   the   pilot   of  the 
''road"   engine   and    the   evidence   disclosed    that    there 
would  have  been  less  danger  for  employes  if  the  engine 
had   })e('n  (Mniippcd    with    a  footboard.     The  court  hekl 
tliat  it  was  a  (piestion  for  the  jury  to  determine  wliethor 
tlie  railroad  company  was  negligent  in  using  the  "road" 
engine  instead  of  a  regular  switch  engine/'    A  conductor 
of  a  freight  tran  was  killed  in  a  rear-end  collision.     One 
of  the  brakemen  working  under  him  neglected  to  i)rotect 
the  rear  of  the  train  by  going  back  a  certain  distance  to 
flag  a])i)roaching  trains  as  he  was  required  to  do.    It  was 
lield  that  the  brakenuui's  negligence,  as  a  matter  of  law, 
was   the    defendant's    negligence."      A    gang    of    track 
laborers  were  returning  from  their  work  on  several  hand- 
cars which  were  a  short  distance  ai)art.     One  of  thes^ 
cars  on  which  i)laintiff  was  riding  collided  with  the  car 
just   ahead    of   it,    causing   plaintiff's   injuries.    It    was 
shown  that  the  men  on  the  car  in  front  of  plaintiff's  car 
without  any  warning  suddenly  materially  reduced  the 
speed  of  their  car  and  the  collision  followed.    The  court 
held  that  the  question  whether  the  defendant's  employes 
on  the  first  car  were  negligent  was  properly  a  question 
for  the  jury."^    Whether  a  railroad  company  was  negli- 
gent in  failing  to  inspect  a  box  car  after  the  roof  was 
blown  off  and  before  the  said  condition  of  the  box  car 
caused  an  injury  to  an  employe,  was  properly  submitted 
to  a  jury  for  determination."'    Plaintiff  was  assisting  in 
repaii'ing  a  railroad  bridge  by  preparing  the  points  and 
heads  of  idlings  so  that  they  might  be  driven  with  a  pile- 
driver.    He  attached  a  rope  to  a  pile  so  that  it  might  be 
hoisted   by   the   ])ile-driver   and   moved   into   the   place 

74.  Louisville  &  N.  R.  Co.  v.  76.  San  Pedro,  L.  A.  &  S.  L  R. 
Lankford  126  C.  C.  A.  247,  209  Co.  v.  Davide  127  C.  C.  A.  454.  210 
Fed.  321.  Fed.   870. 

75.  Pennsylvania  R.  Co.  v.  77.  Ridge  v.  Norfolk  Southern 
Goughnour.  126  C.  C.  A.  39,  208  R.  Co.,  167  N.  C.  510,  L.  R.  A. 
f'e^-   9*''l-  1915E   215,   83   S.   E.   762 


964  Injuries  to  Tnteestate  Employes.         [§  548 

where  it  was  to  be  driven.    Plaintiff  then  crossed  to  the 
other  side  of  the  track  when  the  pile,  it  being  raised, 
swung  over  and  struck  him.     There  was  evidence  tend- 
ing to  show  that  if  the  engineer  o]ierating  the  pile-driver 
engine  liad  held  the  line  as  it  was  his  duty  to  do,  the 
piling  would  have  swung  across  from  one  side  of  the 
track   to   the   other  high   enough  to   avoid   hitting  the 
plaintiff.    The  question  of  the  engineer's  negligence  was 
properly  submitted  to  the  jury.''    A  section  hand,  while 
sweeping  snow  from  the  switches  of  a  main  line  on  a 
cold,  windy,   dark  night,   was   struck   and   killed   by   a 
train  running  at  a   speed  of  35  miles  an  hour  without 
the  bell  ringing  or  whistling,  except  that  the  whistle  was 
blown  at  the  whistling  post  before  reaching  the  station. 
The  track  at  the  point  was  straight  and  the  engine  had 
a  headlight  which  would  show  objects  for  a  distance  of 
1,  000  feet.  The  men  in  charge  of  the  train  knew  that  on 
such   nights  section  men   worked   at   switches  to   keep 
them  clear  of  snow.    The  court  held  that  on  the  question 
of  the  defendant's  negligence  the  cause  was  properly 
submitted  to  the  jury.'''    A  large  number  of  boxes  had 
been  standing  for  several  weeks  on  a  platform  within  a 
foot  of  a  passing  car.    A  passenger  train  passed  by  this 
platfonn  and  the  steps  attached  to  the  side  of  the  bag- 
gage car  were  torn  away  by  striking  some  of  these  boxes 
which  had  toppled  over  a  few  hours  before.     Shortly 
thereafter  the  baggageman  on  the  train  as  it  approached 
another  station,  fell  to  the  ground  because  of  the  absence 
of  the  steps.     In  leaving  the  boxes  unsecured   so  that 
they  might  cause  damage  to  a  passing  train,  the  court 
held  that  the  defendant  was  guilty  of  actionable  negli- 
gence under  the  federal  act.'°    A  passenger  train  stopped 
at  niglit  on  a  trestle  bridge  which  was  floored  on  one 
side  of  the  track  but  not  on  the  other.    The  train  porter 
on  the  command  of  the  conductor  who  knew  the  con- 
dition of  the  trestle,  stepped  from  the  train  on  the  side 

78.  Smith  v.  Northern  Pac.  R.  181  Mo.  App.  156,  168  S.  W.  328. 
Co.,  79  Wash.  448,  5  N.  C.  C.  A.  80.  Ferebee  v.  Norfolk  South- 
947!  140  Pac.  685.                                      ern   R.   Co..   163   N.  C.   351,   52  L. 

79.  Hardwlck  v.  Wabash  R.  Co.,       R.  A.    (N.  S.)    1114,  79  S.  E.  685. 


<^  548]  Negligence  Under  Federal  Act,  965 

that  was  not  floored,  fell  several  feet  to  the  ground  and 
was  injured.  He  had  been  ordered  by  the  conductor  to 
get  ot^"  the  train  in  order  to  carry  an  oil  can  to  the  en- 
gineer. The  ])orter  was  ignorant  of  the  condition  of  the 
bridge,  ^riie  court  held  that  the  conductor  as  the  agent 
of  the  defendant  was  negligent  in  failing  to  inform  the 
porter  as  to  the  j)roi)<'i-  side  of  the  bridge  for  him  to 
alight  and  that  said  negligence,  under  the  federal  act, 
was  the  proximate  cause  of  the  injury.^^  A  petition  in 
an  action  under  the  federal  act  stated  that  the  plaintiff 
was  a  fireman  on  an  interstate  train;  that  as  the  train 
approached  close  to  a  place  where  the  track  had  been 
torn  up  for  repairs,  a  flagman,  one  of  the  laborers  on 
the  track,  ran  excitedly  towards  the  train  and  signaled 
the  engineer  to  stop.  The  emergency  brakes  were  quick- 
ly applied  and  the  plaintiff",  seeing  the  flagman  and  the 
track  torn  up,  jumped  from  the  engine  and  was  injured. 
It  was  alleged  that  the  plaintiff" 's  injuries  were  caused 
by  the  negligence  of  the  defendant  in  failing  to  have  a 
flagman  a  sufficient  distance  away  from  wh(^i-e  the  em- 
ployes were  working  on  the  track  so  that  the  train  could 
be  stopped  before  reaching  the  point.  The  petition  was 
held  to  state  a  good  cause  of  action  under  the  federal 
act.^-  A  bridge  carpenter  was  at  work  on  a  double  track 
bridge  within  fifty  feet  of  a  curved  tunnel  on  the  west 
and  on  the  east  approach  there  was  another  curve  in  a 
cut.  The  foreman  took  no  precaution  to  protect  the 
workmen  by  sending  out  flagmen.  He  only  stood  on  the 
east  bound  track  and  called  "railroad"  or  "clean  up" 
on  observing  the  apiu-oach  of  a  train.  It  was  held  that 
the  company  was  guilty  of  negligence  under  the  federal 
act  in  failing  to  protect  the  bridge  carpenters  with 
flags.-'     Whether  a  railroad  company  was  negligent  in 

81.  Missouri,   K.   &  T.   Ry.  Co.  83.     Norfolk  &  W.  R.  Co.  v.  Hol- 

of    Texas    v.    Bunkley,    Tex.  brook.  131   C.  C.  A.  621^  215  Fed. 

Civ.  App.  ,  153  S.  W.  937.  687;    s.   c,    131   C.   C.   A.   666,   215 

82.  Charleston  &  W.  C.  R.  Co.  Fed.  1007  rev'd  on  other  grounds 
V.  Brown,  13  Ga.  App.  744,  79  S.  by  United  States  Supreme  Court 
E.  932.  235   U.   S.   625,   59   L.   Ed.   392,   35 

Sup.   Ct.    143,  7   N.    C.  C.   A.   814. 


966  Injuries  to  Interstate  Employes.         [§  548 

failing  to  illuminate'  and  guard  an  opening  in  a  platform 
tunnel,  was  held,  in  an  action  under  the  federal  act, 
under  the  evidence  to  be  a  (piestion  for  th{>  jury.''  A 
switclunan,  while  walking  along  a  track  in  a  terminal 
railroad  yard  at  night,  was  struck  and  killed  by  an 
engine  moving  slowly  and  almost  noiselessly  in  the  same 
direction.  The  engine's  headlight  was  very  dim  and  a 
train  on  another  track  nearby  was  passing  at  the  same 
time  making  considerable  noise.  The  engine  which 
struck  the  switchman  could  have  been  stopped  within  a 
few  feet  but  the  engineer  did  not  see  the  decedent.  It 
was  held  that  these  facts  constituted  sufficient  evidence 
of  negligence  and  a  verdict  for  the  plaintiff  was  affirm- 
ed.'' Whether  a  cinder  pile  placed  near  a  track  in  a 
railroad  yard  constituted  a  "  defect  due  to  negligence" 
within  the  meaning  of  the  federal  act,  was  a  question 
for  the  jury  to  pass  upon.*"  A  railroad  employe,  while 
riding  on  the  side  of  a  box  car  at  night,  struck  a  switch 
stand  and  was  injured.  In  a  subsequent  action  for 
damages  under  the  federal  act,  the  court  held  that  the 
question  of  the  defendant's  negligence  in  maintaining 
the  switch  stand  too  close  to  the  track  was,  under  the 
evidence,  a  matter  for  the  jury  to  determine."'  An  en- 
gineer in  stopping  a  train  and  causing  such  an  unusual 
and  sudden  jolt  as  to  throw  an  employe  from  a  ladder 
on  a  side  of  a  car  was  guilty  of  negligence  under  the 
federal  act.""  When  a  railroad  company  caused  some 
cars  to  be  "kicked"  at  night  without  warning  and 
without  light  along  a  track  in  a  terminal  yard,  its  negli- 
gence in  so  doing  was  a  jury  question.*"  •  A  brakeman, 

84      Copper  River   &  N.   W.   R.  88.      Owens   v.    Chicago,    G.    W. 

Co.  V.  Heney,  128  C.  C.  A.  131,  211       R-   Co.,   113    Minn.   49,   128  N.  W. 

1011;    La  Mere  v.  Railway  Trans- 

,.  „    ^  o     •,!,        fer  Co.    125  Minn.  526,  147  N.  W. 

85.  southern  R.  Co.  v.  Smith,  ^^  ^    ^^    ^^^^.^  ^  ^ 

123  C.  C.   A.   488    205   Fed.   360.  ^    ^    ^^     ^^^   ^^    ^^^    ^^^^   ^g, 

86.  Southern  R.  Co.  v.  Jacobs.       g    ^    ^^^      ^^^.^j^  ^^^.^j^  ^  ^    ^ 
116  Va.  189,  81  S.  E.  99.  Ry    Co.  v.  Stalcup,  Tex.  Civ. 

87.  McDonald  v.  Railway  Trans-       App.  ,   167  S.  W.   279. 

fer  Co.  of  Minneapolis,  121  Minn.  89.     Colasurdo  v.  Central  R.  R. 

273-    141   N.    W.    177.  of  New  Jersey,   180  Fed.   832;     s. 


§  548]  NixiLTGENCE  ITnder  Federal  Act.  967 

wliilc  switcliiiii::  oars  from  a  train  to  a  side  track  at 
iii^lil  niul  ri(]in,n-  on  tlic  side  of  a  box  car,  was  struck 
and  i)i.jiir<'<l  hy  otlxT  cars  staiMlin;^' (»ii  tlic  ndjoinin*^ 
track  wliicli  had  not  been  sbovcd  far  enough  fi'oin  the 
switch  to  be  "in  the  clear."  The  brakeman  knew  of 
the  presence  of  the  standing-  cars  l»ut  did  not  know  how 
far  they  had  been  placed  from  tlie  switch  joinin.i^  the 
two  tracks.  He  proceeded  to  investij^ate  before  makiui^ 
the  switcliino:  movement  but  before  ascertaining  the 
condition  of  the  cars  he  was  assured  by  a  fellow  brake- 
man  that  the  standing  cars  could  be  passed  with  safety 
and  relying  upon  this  assurance,  he  proceeded  with  the 
switching-  movement  and  was  injured  by  coming  in  con- 
tact with  the  cars.  In  an  action  under  the  federal  act 
it  was  held  that  his  fellow  brakeman 's  statement  con- 
stituted actionable  negligence."''  A  switchman  while 
assisting  in  ''poling"  a  car,  was  crushed  to  deatli  be- 
tween the  engine  and  the  car.  There  was  evidence  pro 
and  con  as  to  the  proper  method  in  such  movement  of 
cars.  Whether  the  method  actually  used  by  direction  of 
the  foreman  was  negligent  and  caused  the  death  of  the 
decedent,  was  held,  under  the  evidence,  to  be  a  jury 
question."'  A  track  laborer  taking  out  old  ties  from  the 
main  line  when  a  train  approached  on  that  track,  step- 
ped on  an  adjoining  track  where  he  was  struck  and 
killed  by  a  switch  engine  whicli  a])proached  without  any 
warning.  Witnesses  testified  that  it  was  customary  for 
switching  crews  to  give  warning  to  track  laborers. 
It  was  held  that  the  question  of  the  negligence  of  the 
employes  in  charge  of  the  switch  engine  was  properly 
submitted  to  the  juiy."*^  A  glass  attached  to  a  lubricator 
on  an  engine  exploded  and  blew  the  shield  around  it 
against  an  engineer's  face  causing  the  loss  of  an  eye. 
The  lubricator  in  question  was  a  kind  called  "Nathan" 
which  sometimes  exjilodes.     Seventy-five  per  cent  of  the 

C.  113  C.  C.  A.  379.  192  Fed.  901.        R.    Co.,    157    Wis.    4U0.    147    X.    W. 

90.  Skaggs  V.  Illinois  Cent  R.       1054. 

Co.,  124  Minn.  503,  145  N.  W.  381.  92.     Bombolis  v.  Minneapolis  & 

91.  Sweet  v.  Chicago  &  N.  W.       St.   L.  R.  Co.,   128  Minn.   112,   150 

N.  W^  385. 


968  Injuries  t(^  Tnteestate  Employes.         [§  548 

defendant's  engines  were  equipped  with  a  kind  of 
lubricator  known  as  ''Bull's  Eye"  which  did  not  ex- 
l)lode.  The  "Nathan"  lubricators  had  been  in  use  for 
twenty  years  but  for  three  years  before  the  date  of 
plaintiff's  injury  this  kind  had  been  replaced  on  most  of 
the  engines  by  the  "Bull's  Eye"  lubricators.  Whether 
the  defendant  committed  a  negligent  act  in  continuing  to 
furnish  the  engine  on  which  plaintiff  was  working  with 
a  "Nathan"  lubricator  instead  of  a  "Bull's  Eye,"  was 
a  question  for  the  jury.^^  A  car  foreman  while  on  duty 
had  the  exclusive  possession  of  certain  keys  which  un- 
locked the  switches  of  a  certain  repair  track  in  a  term- 
inal yard.  Decedent,  a  car  repairer,  while  working  on 
this  track  was  ordered  by  the  foreman  to  go  to  another 
track  in  the  yard  to  make  slight  repairs  to  a  car.  While 
he  was  absent  the  foreman  ordered  the  switching  crew 
to  take  out  some  cars  from  the  repair  track  and  place 
others  in  there  for  repair.  Having  no  knowledge  of  the 
foreman's  order  or  that  cars  were  being  switched  onto 
the  repair  track,  the  car  repairer  returned  and  while  at 
work  on  a  car  standing  on  the  repair  track,  the  car  was 
struck  by  other  cars  shoved  in  on  the  repair  track  by  the 
switching  crew  causing  the  death  of  the  car  repairer. 
It  was  held  that  whether  the  foreman  was  negligent  in 
failing  to  anticipate  that  the  car  repairer  would  return 
before  the  switching  was  completed  and  in  failing  to 
warn  the  decedent,  was  not  a  question  of  law  but  a 
question  of  fact  to  be  solved  by  the  jury.''*  A  railroad 
employe  was  ordered  by  the  conductor  to  couple  an 
engine  to  a  way  car.  Upon  the  first  effort,  the  coupling 
failed.  The  way  car  was  knocked  back  some  distance. 
The  deceased  stepped  in  to  fix  the  pins  and  then  signaled 
the  fireman  to  couple  up,  but  the  caboose  again  failed  to 
]nake  the  coupling.  The  deceased  again  stepped  in  to 
adjust  the  coupling  and  while  standing  near  the  draw 
})ar  the  caboose  suddenly  moved  down  upon  him,  causing 
his  death.     It  was  held  that  the  evidence  was  sufficient 

9.3.     Bower  v.  Chicago  &  N.  W.  94.     Evans  v.   Detroit,  G.   H.  & 

R.  Co.,  96  Neb.  419,  148  N.  W.  M.  R.  Co.,  181  Mich.  413.  148  N. 
14.5.  W.  490. 


"§>  54*)]  Negligence 'Undkh  Fedehal  Act.  9(39 

to  sliow  a  violation  of  tlio  Federal  Safety  A))i)lianee  Act 
and  that  such  violation  caused  liis  death.''  Decedent, 
a  cai"  iiisi>e('1or,  was  run  oxer  and  killed  at  Jii.i^ht  on  a 
track  in  a  railroad  terminal  yai'd  hy  some  cars  backed 
Hj)  ])\  a  switch  engine  without  warning-,  without  lights 
and  with  no  one  on  the  end  of  the  hrst  car  to  warn  him 
of  danger.  In  an  action  under  the  federal  act  it  was 
held  that  the  (|ue.stion  of  the  defendant's  negligence  was 
proi)erly  submitted  to  the  jury.""  A  section  laborer  in  a 
railroad  yard  stejiped  on  a  certain  track  for  purjDoses  of 
his  own,  the  evidence  being  conflicting  as  to  whether  he 
was  between  two  cars  or  at  the  end  of  a  car  standing  on 
the  track.  While  so  standing  he  was  truck  hy  some 
cars  switched  upon  the  track.  There  was  evidence  that 
there  was  no  one  on  these  cars  in  a  suitable  position  to 
warn  employes  of  their  api)roacli  and  there  was  also 
evidence  that  the  section  foreman  knew  that  the  laborer 
was  in  a  position  of  danger  on  the  track  and  that  he  by 
exercising  ordinary  care  could  have  seen  the  approach- 
ing cars  in  time  to  have  warned  the  decedent.  It  was 
held  under  these  facts  that  the  cause  was  ])ro))erly  sub- 
mitted to  the  jury  under  the  federal  act.''' 

§  549.  Cases  Under  Federal  Act  in  Which  the 
Facts  were  Held  not  to  Show  Actionable  Negligence. 
An  electric  passenger  car  while  running  from  one  state 
to  another  was  derailed  in  the  state  of  Ohio  causing 
the  death  of  the  motoiTnan.  Under  a  statute  of  Ohio 
proof  of  a  defect  in  the  wheels  of  the  car  was  sufficient 
to  create  a  ])rima  facie  case  of  negligence  but  as  the 
action  was  prosecuted  under  the  federal  act  the  state 
statute  was  inoi)erative  for  the  reason  that  under  the 
federal  act  a  conmion  carrier  by  railroad  is  not  liable  un- 
less the  death  is  the  result  of  defects  "due  to  negli- 
gence" and  a  recovery  was  denied."*    An  engine  repairer 

95.     Montgomery  v.  Carolina  &  97.      Louisville   &    X.    R.   Co.   v. 

N.  AV.  R.  Co  ,  163  N.  C.  507,  80  S.  .Johnson's  Adni'x    161  Ky.  824,  171 

E.  83.  S.  W.  847. 

9G.     Thornton  v.   Seaboard  Air  98.      South    Covington   &  C.   St. 

IJne  Ry.,   98   S.   C.   348,  82   S.   E.  R.  Co.  v.  Finan's  Adm'x.  153  Ky. 

433.  340,  155  S.  W.  742. 


970  iNjriuBs  TO  Interstate   Employes.        [§  549 

ill  a  roiiiidliouse  liad  his  hand  crushed  between  a  pilot 
beam  and  a  jack  while  attempting  to  lower  the  front 
end  of  a  locomotive  engine.  He  claimed  that  the  engine 
dro]>ped  because  another  jack  on  the  other  side  of  the 
engine  slipped  and  that  this  in  tiu'n  was  due  to  the  fact 
that  a  wrench  was  used  as  a  substitute  for  a  lever.  The 
court  held  that,  under  the  evidence,  the  i)laintiff  failed 
to  show  that  an  act  of  negligence  caused  the  injury.**^ 
A  fireman  on  an  engine  saw  a  track  walker  w^alking  in  a 
place  of  safety  between  two  tracks  with  his  back  to  the 
train.  The  engine  bell  was  ringing;  but  as  the  train 
came  close  to  the  track  walker,  he  suddenly  stepped 
from  between  the  tracks  on  the  track  on  which  the  train 
was  approaching  and  was  run  over  and  killed.  He 
could  not  have  been  seen  by  the  engineer  because  of  a 
curve.  A  jury  returned  a  verdict  against  the  railroad 
company  and  found  that  the  death  of  the  track  walker 
was  due  in  part  to  the  negligence  of  the  fireman  in 
failing  to  request  the  engineer  to  sound  the  whistle  when 
the  decedent  was  tirst  seen  by  the  fireman  while  walking 
between  the  tracks.  It  was  held  that  the  fireman  was 
not  negligent  in  failing  to  anticipate  that  the  decedent 
would  step  from  a  place  of  safety  on  a  track  directly  in 
front  of  an  approaching  train  and  the  cause  was  re- 
versed.^ Plaintiff,  a  student  fireman,  was  given  a  letter 
by  the  defendant  railroad  company  permitting  him  to 
ride  on  the  engines  of  all  freight  trains  to  prepare  him- 
self for  the  duties  of  a  fireman.  He  boarded  an  engine 
of  one  train  and  was  informed  by  the  fireman  that  it 
was  not  a  suitable  train  to  leani  firing  on  and  he  was 
advised  to  get  off  and  then  get  on  another  train  running 
in  the  opposite  direction  at  a  certain  place  over  which 
all  trains  ran  under  "slow  orders."  He  was  told  that 
the  train  would  pass  that  place  running  only  six  miles 
an  hour  and  that  he  could  easily  get  on.  The  plaintiff 
did  so  and  in  attempting  to  get  on  the  other  train  was 

99.      Winters    v.   Minneapolis  &  1.      New    Yorky   N.   H.   &   H.   R. 

St.  L.  R.  Co.,  126  Minn.  260,  148  (^o.  v.  Pontillo.  128  C  C.  A.  573, 
N.  W.  106.  211  Fed.  331. 


<^  549]  Nk(jm(;ex<k  UxDKFt    Fkdkhal  Act.  971 

tlirown  UTidor  the  wkccls  and  iiijiii-cd.  He  attriliiitod  liis 
injuries  to  the  excessive  sjx'cd  of  llic  1i-ain  of  wliich  he 
liad  no  knowledge,  but  assumed,  on  Ihc  assurance  of  tlie 
fireman  of  tlie  otlier  train,  that  it  was  only  runnint^  at 
the  rate  of  six  miles  i)er  hour.  He  had  had  no  ex- 
perience in  judftin^-  the  si)eed  of  trains.  The  court  held 
that  there  was  no  dii1\  towards  tlie  plaintiff  to  i-un  the 
train  at  six  miles  an  hour  and  consequently  no  nci^li- 
gence.-  PlaintilT,  a  section  foreman,  was  ridin,^'  with  a 
force  of  men  on  a  liandcai-  while  inspecting  the  tracks. 
A  flagman  had  i)receded  tlie  section  hands  along  the 
track  so  as  to  give  tliein  warnings  of  approaching  trains. 
Suddenly  a  freight  train  running  at  a  high  rate  of  speed 
came  in  sight  from  around  a  curve  and  the  flagman 
promptly  warned  the  men  on  the  handcar.  Because  of 
the  close  proximity  of  the  train  when  it  was  discovered, 
owing  to  the  curve  which  obstructed  the  view,  the  men 
on  the  handcar  acted  prom])tly,  and  to  ]n-event  a  threat- 
ened collision  (piickly  removed  the  car.  The  i)laintiff 
in  assisting  strained  himself  and  sustained  injuries.  The 
court  found  that  under  the  facts  neither  the  flagman  or 
the  train  emi)loyes  were  negligent  and  that  as  it  was 
necessary  for  the  plaintiff  in  an  action  under  the  federal 
act  to  show  by  the  evidence  that  his  injuries  wei'e 
caused  in  whole  or  in  part  by  the  defendant's  negligence 
or  its  employes,  there  was  no  liability.^  Two  section 
men,  each  holding  one  end  of  a  tie,  started  to  toss  the 
tie  on  a  flat  car.  The  tie  was  in  a  wet,  slippery  condition 
and  this  caused  it  to  turn  as  it  was  being  tossed  on  the 
car.  One  of  the  two  laborers,  by  reason  of  the  tie  slip- 
ping and  turning,  had  his  finger  caught  between  the  tie 
and  the  floor  of  the  car,  causing  it  to  be  pinched  off. 
In  a  subsequent  action  under  the  fedeial  act,  it  was  held 
that  the  facts  disclosed  did  not  show  negligence  within 
the  meaning  of  the  act,  but  that  the  plaintiff's  injui'y 
was  due  to  an  accident  without   any  causal   negligence 

2.    Cincinnati,  N.  0.  &  T.  P.  R.  3.      Louisville    &    X.    R.    Co.    v. 

Co.  V.  Wheeler,  160  Ky.  215.  169  Kemp.  140  Ga.  657.  79  S.  E.  55S. 
S.    W.    690. 


5>72  Injueiks  to  Interstate   Employes.        [§  549 

(jonlributiiig/  Steam  escaped  from  a  steam  pipe  attach- 
ed to  a  steam  chest  on  a  ferry  boat  used  by  a  railroad 
company  as  a  part  of  its  line.  The  escaping'  steam 
caused  the  death  of  an  employe  on  the  boat  and  it  was 
held  in  an  action  for  his  death  by  tlie  administrator  on 
behalf  of  the  beneficiaries  named  in  the  federal  act  that 
as  there  was  no  evidence  produced  tendin^^  to  show 
that  the  escape  of  the  steam  and  the  breaking  of  the 
pipe  was  due  to  some  negligence  on  the  part  of  the 
owner,  there  could  be  no  recovery.'*  A  brakeman  while 
switching  cars  at  night  and  knowing  that  cars  were  be- 
ing shoved  back  in  response  to  his  signal  to  the  en- 
gineer, placed  himself  between  the  track  on  which  the 
cars  were  approaching  and  a  freight  loading  platform 
where  the  space  between  the  platform  and  a  car  was 
only  a  few  inches  and  too  narrow  for  a  man  to  stand 
with  safety.  While  the  cars  were  still  about  twenty 
feet  away  from  him,  the  conductor  warned  him  of  the 
dangerous  place  he  was  in  and  told  him  to  get  out. 
Then  the  brakeman  set  his  lantern  on  the  platform, 
placed  his  hands  upon  the  platform  and  tried  to  vault 
onto  the  platform  but  before  he  succeeded  the  end  of  the 
car  caught  him  and  crushed  him  between  the  car  and 
the  platform.  It  was  held  that  no  negligence  of  the 
defendant  contributed  either  in  whole  or  in  part  to  cause 
the  death. "^  A  conductor  was  walking  along  the  side  of 
his  train  taking  the  numbers  of  the  cars  while  the  crew 
was  making  up  the  train.  Starting  at  the  rear  of  the 
train  there  were  first,  three  cars;  second,  a  space  of  18  or 
20  feet;  third,  three  more  cars;  fourth,  a  space  of  several 
feet,  and,  fifth,  a  long  string  of  freight  cars  with  the 
engine  at  their  head.  When  the  conductor  reached  the 
rear  of  the  forward  three  cars,  he  gave  the  lift  pin  lever 
a  jerk,  and  tlien  reached  in  to  put  his  hand  on,  or  act- 
ually took  hold  of  the  coupler  when  the  forward  end 

4.  Long  V.  Southern  R.  Co.  in       s.   c.   122  C.   C.   A.   46G,   204   Fed. 
Kentucky,  155  Ky.  286,   159  S.  W.       266. 

779.  6.     Pankey  v.  Atchison,  T.  &  S. 

5.  The  Passaic,   190   Fed.   644;        F.  R  Co.,  180  Mo.  App.  185,  6  N. 

C.  C.  A.  74,  168  S.  W.  274. 


«§k  550]  Negligence  Under  Federal.  Act.  973 

of  tlio  train  struck  tlie  forwai'*!  ciid  of  the  tlirec  ears  in 
the  act  of  coupling  to  tlieni,  knocked  him  down  and  ran 
over  him.  The  car  to  whicli  tlie  coui)k^r  was  attaclied 
had  been  inspected  shortly  before  the  accident  and  the 
inspectors  had  fomid  no  defect.  Several  witnesses  ex- 
amined and  c)])erated  tlie  ooupler  and  the  lift  pin  lever 
imni(Mliately  after  the  accident  and  found  them  in  good 
condition  and  oi^erating  perfectly.  It  was  held  that 
under  this  state  of  facts  the  verdict  of  the  jury  that  the 
coui)ler  was  so  defective  at  the  time  of  the  accident 
that  "it  would  not  coui)le  automatically  by  impact  with- 
out the  necessity  of  men  going  in  between  the  car"  as 
required  by  the  Federal  Safety  Appliance  Act,  was  based 
on  conjecture  and  could  not  be  sustained.^  A  section 
hand  was  riding  on  a  tricycle  on  a  railroad  track  with 
his  foreman.  Tools  were  also  being  carried.  The  fore- 
man ordered  the  laborer  to  stop  the  car  with  the  brake 
and  when  he  attemped  to  do  this  with  his  hand,  his  arm 
came  in  contact  with  the  tools  on  the  car  causing  his 
fingers,  in  some  way  not  clearly  shown,  to  be  caught 
in  the  cog  wheels,  injuring  him.  It  was  claimed  in  a 
suit  under  the  federal  act  that  the  foreman  was  negli- 
gent in  ordering  the  laborer  to  apply  the  brakes  as  in  do- 
ing so  he  might  probably  come  in  contact  with  the 
tools  and  be  injured.  The  court  held  that  such  an  act 
on  the  part  of  a  foreman  was  not  negligence  and  that 
the  injury  was  caused  by  an  accident  without  any 
negligence  contributing  thereto.* 

§  550.  Statute  Covers  Acts  of  Interstate  Employes 
and  Defects  in  Instrumentalities  Used  Solely  in  Intra- 
state Commerce.  It  is  not  essential,  to  permit  a  re- 
covery under  the  national  act,  that  the  employe  whose 
negligence  caused  the  injury  be  also  employed  in  inter- 
state commerce  or  that  the  instrumentality,  the  defect  in 
which  caused  the  injury,  l)e  used  at  the  time  in  interstate 

7.     Midland    VaUey    R.    Co.    v.  8.     Cincinnati,  N.  O.  &  T.  P.  R. 

Fulgham,    104    C.    C.    A.    151.    181  Co.   v.    Hill     161   Ky.    237,    170    S. 

Fed.   91,   L.  R.  A.   1917E  1  rev'g.  \V.  599. 
167   Fed.  660. 


974 


InjI'Ries  to   Interstate  Employes. 


[§  550 


commerce.^  Instances  where  tlie  causal  negligence  is  that 
of  a  co-employe  engaged  at  the  time  solely  in  intrastate 
commerce  or  where  the  instrnmentality  causing  tlie  injury 
was  used  at  tlie  time  exclusively  in  intrastate  commerce, 
are  embraced  within  the  terms  of  the  act,  if  the  other  con- 
ditions are  present,  that  is,  if  the  carrier  was  engaged  in 
interstate  commerce  and  if  the  injured  employe  at  the  time 
was  employed  in  interstate  commerce/"  The  statute 
gives  a  right  of  recovery  under  such  conditions  for  "in- 
jury or  death  resulting  from  the  negligence  of  any  of  the 
employes."  In  the  Pedersen  case,  cited  in  the  notes,  the 
court  said  "But  it  is  not  essential,  where  the  causal 
negligence  is  that  of  a  co-employe,  that  he  also  be  em- 
ployed in  such  commerce,  for,  if  the  other  conditions  be 
present,  the  statute  gives  a  right  of  recovery  for  injury  or 
death    resulting   from    the    negligence    'of    any    of   the 


9.  United  States.  Mondou  v. 
New  York,  N.  H.  &  H.  R.  Co.,  223 
U.  S.  1,  56  L.  Ed.  327,  32  Sup.  Ct. 
169,  1  N.  C.  C.  A.  875;  38  L.  R. 
A.  (N.  S.)  44;  Lamphere  v.  Ore- 
gon R.  &  Nav.  Co.,  116  C.  C  A. 
156,  196  Fed.  336,  47  L.  R.  A.  (N. 
S.)  1;  Central  R.  Co.  of  New 
Jersey  v.  Colasurdo,  113  C.  C.  A. 
379,  192  Fed.  901;  Colasurdo  v. 
Central  R.  R.  of  New  Jersey,  180 
Fed.  832;  Zikos  v.  Oregon  R.  & 
Nav.   Co.,  179   Fed.   893. 

California.  Southern  Pac.  Co. 
V.  Industrial  Ace.  Commission  of 
California,  174  Calif.  8,  161  Pac. 
1139. 

Indiana.  Pittsburgh,  C,  C.  & 
St.  L.  R.  Co.  V.  Farmers'  Trust 
&  Savings  Co.,  183  Ind.  287,  108 
N.    E.    108. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Walker's  Adm'r.  162  Ky. 
209,   172  S.  W.  517. 

Minnesota.  Crandall  v.  Chicago 
Great  Western  R.  Co.,  127  Minn. 
498,  150  N.  W.  165. 


New  Jersey.  Grybowski  v.  Erie 
R.  Co..  88  N.  J.  L.  1,  95  Atl.  764. 

North  CaroUna.  Sears  v.  Atlan- 
tic Coast  Line  R.  Co.,  169  N.  C. 
446,  86  S.  E.  176. 

Contra:  Illinois  Cent.  R.  Co. 
V.  Rogers,  136  C.  C.  A.  530,  221 
Fed.  52;  Mayers  v.  Union  R.  Co., 
256   Pa.  474    100  Atl.   967. 

10.  Southern  Pac.  Co.  v.  In- 
dustrial Ace.  Commission  of  Cali- 
fornia, 174  Cal.  8,  161  Pac.  1139; 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co. 
v.  Farmers'  Trust  &  Savings  Co., 
183  Ind.  287,   108  N.  E.  108. 

11.  Pedersen  v.  Delaware,  L.  & 
W.  R.  Co.,  229  U.  S.  146,  57  L. 
Ed.  1125,  33  Sup.  Ct.  648,  3  N. 
C.  C.  A.  779  Ann.  Cas.  1914C  153; 
Mondou  V.  New  York,  N.  H.  &  H. 
R.  Co.,  Second  Employers'  Lia- 
bility Cases,  223  U.  S.  1,  56  L.  Ed. 
327,  32  Sup.  Ct.  169,  1  N.  C.  C.  A. 
875,  38  L.  R  A.  (N.  S.)  44;  Cola- 
surdo V.  Central  R.  R.  of  New 
Jersey,  180  Fed.  832,  aff'd  in  113 
C.  C.  A.  379,  192  Fed.  901. 


§  551 J  Xegligenck  Under  Federal  Act.  975 

employes  of  such  carrier,'  and  this  includes  an 
employe    en^aKt'd    in    intrastate    commerce."      An    ap- 
l)ellate  court  in  New  Jersey  rendered  an  err<jneous  de- 
cision on  the  (piestion  of  ai)i)licability  of  the  federal  act 
whicli  was  due  in  part  to  a  failure  to  recognize  this  prin- 
ciple.'-'     In    iliat    case   the   plaintiff   was  injured    while 
})lacin^-  a  cover  over  the  mechanism  of  a  switch  which  he 
had  just  oiled.     The  switch  connected  with  tracks  used 
indiscriminately    in    moving   both    kinds   of   commerce. 
While  so  engaged  the  ])lantiff  was  struck  hy  a  car  used 
at  the  time  solely  in  intrastate  commerce.     It  was  held 
that  there  could  be  no  recovery  under  the  federal  act 
for  two  reasons,  one  of  them  given  l)y  tlui  court  was  that 
the  car  was  not  used  in  interstate  commerce.     This  rul- 
ing was  erroneous  for  it  is  immaterial  whether  the  in- 
strumentality which  caused  the  injury  was  at  the  time 
being  used  in  interstate  commerce.  In  a  case  which  has 
been'^verv  frecpiently  cited,  the  rule  on  this  feature  is 
clearly   stated  as  follows :  "  I  am    therefore  of  the  opinion 
that  the  plaintiff  was  at  the  time  engaged  in  interstate 
commerce    and    entitled    to  rights  secured    by  this    act. 
(Plaint ilf   was  repairing   a    switch    on    tracks   used   in- 
discriminately for  both  kinds  of  commeice).    That  being 
so,  it  is  a  matter  of  no  consequence  whether  the  train  tliat 
struck  him  was  engaged  in  that  commerce  or  not.    It  is 
true  that   the  act  is  applicable  to  carriers  only  'while 
engaged'  in  interstate  commerce,  but  that  includes  every 
activitv  when  they  are  engaging  in  such  commerce  by 
their  own  employes.     In  short,  if  the  employe  was  en- 
gaged in  such  commerce,  so  was  the  road,  for  the  road 
wa's   the   master,   and   the    servant's   act   its    act.      The 
statute  does  not  say  that  the  injury  must  arise  from  an 
act  itself  done  in  interstate  connnerce,  nor  can  I  see  any 
reason    for   such    an    implied   construction."" 

§  551.  Intrastate  Employes  Injured  by  Negligence  of 
Interstate  Employes   or   Instrumentalities   of   Interstate 

12.    Granger  v.  Pennsylvania  R.  13.     Colasurdo  v.  Central  R.  R. 

Co     84  N    J.  L.  338,  86  Atl.   264.       of  New  Jersey,  180  Fed.  832.  aff'd 

in  113  C.  C.  A.  379.  192  Fed.  901. 


976  Injuries  to  Interstate  Employes.        [^^  551 

Commerce  have  no  Remedy  under  Federal  Act.  When 
a  servant  is  employed  exclnsively  in  intrastate  commerce 
at  the  time  of  his  injury,  he  has  no  remedy  nnder  the 
federal  act,  although  injured  by  another  employe  en- 
gaged at  the  time  in  interstate  commerce  or  by  in- 
strumentalities or  appliances  used  at  the  time  in  inter- 
state commerce,  as  for  instance,  an  interstate  train  on  an 
interstate  highway;  because  under  such  conditions  the 
employe  himself  is  not,  at  the  time  of  the  injury,  engag- 
ed in  interstate  commerce.^^  Under  the  very  terms  of 
the  act  a  recovery  is  limited  to  employes  who  are  in- 
jured ' '  while ' '  employed  in  interstate  commerce.  Under 
the  conditions  named,  it  is  true  that  the  carrier  is  engaged 
in  interstate  commerce  but  tlie  injured  employe  is  not. 
However,  as  pointed  out  in  another  paragraph, 
if  the  employe  is  engaged  in  interstate  commerce  at  the 
time  of  his  injury  although  the  employe  whose  negli- 
gence caused  the  injury  is  engaged  exclusively  in  in- 
trastate commerce  or  the  instrumentality  causing  the  in- 
jury is  being  used  solely  in  intrastate  commerce,  the 
injured  employe's  remedy  is  nevertheless  controlled  by 
the   federal   act.'' 

§  552.  Willful  Wrongs  not  Within  Terms  of  the 
Act.  By  its  terms  the  national  act  is  limited  to  negli- 
gent acts  of  a  common  carrier.  Under  well-known  prin- 
ciples of  law,  injuries  caused  by  the  willful  or  inten- 
tional acts  of  another  are  not  within  the  terms  of  the 
statute,  for,  as  quaintly  said  by  one  jurist,  "when  will- 

14.     "If  he    (an  employe)    were  the  Federal    Employers'    Liability 

in   the   employe   of   an   interstate  Act."     Hardy  v.  Atlanta  &  W.  P. 

carrier,  but  if  his  duties  were  not       r.  co  ,  Ga.  App.  ,  93  S. 

interstate  commerce  in  character  ^    jg 

at  the  time  of  his  death,  the  fact  ^^      Pedersen  v  Delaware,  L.  & 

that   he   was    liilled   by   an  inter-  ^   ^   ^^    ^29  U.  S.  14G.  57  L.  Ed. 

state   passenger   train   of  the   de-  ^^^^^  ^^  ^^^^    ^^    ^^^^  ^  ^    ^    ^ 

fendant   company    under   the  cir-  .„,.^  -,-0     ^  , 

.        .      ,,,     „,„•  A.  779,  Ann.  Cas.  1914C  153;  Cola- 
cumstances  appearing  in  the  evi- 
dence  on  behalf   of   the   plaintiff  s"rdo  v.  Central  R.  R.  of  New  Jer- 
in  error,  woulc"  not  bring  the  de-  sey  180   Fed.  832,  aff'd  in   113  C 
ceased    within    the    operation    of  C.  A.  379,  192  Fed.  901. 


§  552]         Negligence  Under  Fkdkral,  Act.  077 

fulness  comos  in  at  the  door  ne^lig'onee  <j:oos  out  tlirou^li 
tlie  window."  Most  statutes,  ^iviu^  riglits  of  aetion 
I'oi-  (Icatli,  (]('(iii('  llic  \vi'()iii;-t'iil  act  as  the  ''wronp;f'ul  act, 
ne,ii-le<'t  oi'  default  of  another"  which  would  include  in- 
tentional wion^-s;  but  the  federal  act,  for  some  reason, 
has  confined  the  wronp^ful  acts  for  which  a  recovery  can 
be  had,  to  those  which  are  due  to  negligence  solely. 
A  willful  assault  of  one  employe  ui)on  another  would  be 
beyond   the  terms  of  the   statute.^" 

16.      Roebuck    v.    Atchison,    T.       A.  1917E  741.  162  Pac.  1163. 
&  S.  F.  R.  Co.,  99  Kan.  544,  L.  R. 


1    Contnil    (^irrliTs    (5:; 


ellArTEK  XXVIII. 

Assumption   of  Risk  Under  Liability  Act. 

Sec.  553.     The    Statutory    Provision. 

Sec.  554.     Assumption    of  Risk   a   Defense    under    the    Federal    Act. 

Sec.  555.     Doctrine    of    Horton    Case    Reexamined    and    ReaflRrmed    by 

National   Supreme  Court. 
Sec.  556.     Effect    of    State    Constitutions    and    Statutes    Abolishing   or 

Modifying  Assumption  of  Risk  on  Interstate  Employes. 
Sec.  557.     Decisions  of  Federal  Courts  Control  in  Determining  When 

Employe   Assumes   Risk. 
Sec.  558.     Ordinary  Risks  and  Known  or  Obvious  Extraordinary  Risks 

Assumed  by  Interstate  Employes. 
Sec.  559.     Exception  to  Rule  that  Servants  Assume  Obvious  or  Known 

Risks — Promises  of  Repair. 
Sec.  560.     When  Assumption  of  Risk   is  a  Defense  to   Negligent  Acts 

of    Fellow    Servants. 
Sec.  561.     Analysis  of  Federal  Decisions  Applying  Doctrine  of  Assump- 
tion of  Risk  to  Interstate  Employes  of  Railroads. 
Sec.  562.     Distinction  Between  Assumption  of  Risk  and  Contributory 

Negligence. 
Sec.  563.     When  Assumption  of  Risk  is  not  a  Defense — Federal  Safety 

Appliance  Laws. 
Sec.  564.     State  Statutes  for  Safety  of  Employes  not  Included. 
Sec.  565.     Assumption  of  Risk  Eliminated  in  Actions  for  Violation  of 

Hours  of  Service  Act. 
Sec.  566.     Confusing  Assumption  of  Risk  with  Contributory  Negligence 

in   Jury   Instructions  under  Federal  Acts. 
Sec.  567.     When  Assumption  of  Risk  is  no  Defense  When  There  is  a 

Plurality    of    Causes. 
Sec.  568.     Violation  of  Rules  not  Assumption  of  Risk. 
Sec.  569.     Concrete  Instruction   must  be  Given,  if  Requested. 
Sec.  570.     Failure  to  Instruct  on  Assumption,  of  Risk  not  Error  When 

Defendant  has  not  been  Prejudiced  Thereby. 
Sec.  571.     Burden  of  Proving  Assumption  of  Risk  upon  Defendant. 
Sec.  572.     Defense  of  Assumption  of  Risk  Must  be  Pleaded  to  be  Avail- 
able. 
Sec.  57o.     Cases    in    Which    Interstate    Employes    were    Held    to    have 

Assumed   the   Risk. 
Sec.  574.     Cases  in  Which  Interstate  Employes  were  Held  was  to  have 

Assumed  the  Risk. 

§  553.  The  Statutory  Provision.  Section  4  of  the 
federal  act  provides  thai  in  any  action  brought  against 
any  common  carrier  under  or  by  virtue  of  any  of  the 
provisions  of  this  act  to  recover  damages  for  injuries  to, 

(978) 


§  554]  Assumption    of   Risk.  079 

or  the  dcatli  of,  any  of  its  employes  sueli  employe  sliall 
not  be  lield  to  liave  assumed  the  i-isk  of  his  employment 
in  any  case  where  the  viohilioii  hy  sucli  common  carrier 
■  of  any  statute  enacted  for  the  safety  of  employes  con- 
tributed to  the  injury  or  death  of  such  employe. 

§  554.  Assumption  of  Risk  a  Defense  under  the 
Federal  Act.  After  the  passn,i;('  of  the  act  of  IIXIS, 
several  coui'ts  held  that  assumption  of  i-isk  was  not  a  de- 
fense to  an  a(!tion  under  the  federal  act.'  These  couHs 
decided  that,  if  the  plaintiff's  injuries  were  due  to  any 
act  of  neg'lig-ence  enumerated  in  the  first  section  of  the 
act,  that  the  result  of  such  nef^li^ence  could  not  be 
assumed  by  the  employe  even  thoui>-h  he  knew  the  risks 
and  dang-ers  arising  therefrom.  The  decisions  of  these 
courts  is  illustrated  by  an  opinion  of  Judge  McCall  in 
Wright  V.  Yazoo  &  M.  V.  R.  Co.,  cited  in  the  notes,  in 
which  he  said:  "Shall  the  courts  destroy  the  effect  of 
the  act  in  this  particular  by  holding  that  common  car- 
riers are  not  liable  to  their  servants  for  injury  or  death 
inflicted  as  a  result  of  the  negligence  of  their  officers, 
agents  or  employes,  upon  the  ground  that  the  servant 
assumed  the  risk  incident  to  the  negligence  of  the 
officers,  agents  or  employes  of  the  carrier.  .  .  .  As  T 
construe  the  act,  the  risk  that  the  employe  now  assumes 
is  the  ordinary  dangers  incident  to  his  employment, 
which  does  not  include,  since  the  passage  of  this  act,  the 
assumption  of  the  risk  incident  to  the  negligence  of  the 
carrier's  officers,  agents  or  employes,  or  any  defect  or  in- 
sufficiency due  to  its  negligence,  in  its  cars,  a]ipliances, 
machinery,  track,  roadbed,  works,  boats,  wharves,  or 
other  equipment."  But  these  decisions,  and  others  of 
like  import,  have,  no  doubt,  been  in  effect  overruled  by 
subsequent    decisions    of    the    Suiu'eme    Court     of    the 

1,     Wright  V.  Yazoo  &  M.  V.  R.  Philadelphia,   B.    &   W.    R.    Co.   v. 

Co.,  197  Fed.  94;  Sandidge  v.  Atch-  Tucker,  35  App.  Cas.  (D.  C.)  123; 

ison  T.  &  S.  F  R.  Co.,  113  C.  C.  A.  Bower  v.  Chicago  &  N.  W.  R.  Co.. 

653,  193  Fed.  8G7;  Malloy  v.  North-  96  Neb.  419,  148  N.  W.  145. 
ern  Pac.  Ry.  Co.,  151  Fed.   1019: 


980 


Injuries  to   Inteestate   EMPLoyES.        [^  554 


United  States.'     In  the  Horton  case,  cited,  the  Supreme 
Court  lield  that  except  as  to  violations  of  federal  statutes 


2.     United  States.     Baltimore  & 
O.  R.  Co.  V.  Whitacre,  242  U.  S.  169, 
61    L.    Ed.    228,    37    Sup.    Ct.    33; 
Chicago  &  N.  W.  R  Co.  v.  Bower. 
241  U.   S.  470,  60   L.   Ed.   1107,  36 
Sup.  Ct.  624;  Chesapeake  &  O.  R. 
Co.   V.   Proffitt,   241    U.   S.   462,   60 
L.  Ed.  1102,  36  Sup.  Ct.  620;  Chesa- 
peak  &  O.  R.  Co.  v.  De  Atley.  241 
U.  S.  310,  60  L.  Ed.  1016,  36  Sup. 
Ct.  564;   Louisville  &  N.  R.  Co.  v. 
Stewart,  241  U.  S.  261,  60  L.  Ed. 
989v  36  Sup.  Ct.  586;   Baugham  v. 
New  York.  P.  &  N  R.  Co.,  241  U. 
S.  237,  60  L.  Ed.  977,  36  Sup.  Ct. 
592,  13  N.  C.  C.  A.  138;   Jacobs  v. 
Southern  R.  Co.,  241  U.  S.  229,  60 
L.  Ed.  970,  36  Sup.  Ct.  588;  Great 
Northern  R.  Co.  v  Knappv  240  U.  S. 
464,  60  L.  Ed.  745,  36  Sup.  Ct.  399; 
Seaboard  Air  Line  Ry.  v.  Padgett, 
236  U.  S.  668,  59  L.  Ed.  777.  35  Sup. 
Ct.  481;  Southern  R.  Co.  v.  Crock- 
ett, 234  U.  S.  725,   58  L.  Ed.  1564, 
34  Sup.  Ct.  897;  Seaboard  Air  Line 
R.   Co.   V.   Horton,  233   U.   S.   492, 
58   L.    Ed.    1062,   34   Sup.   Ct.   635, 
8  N.  C.  C.  A.  834.  L.  R.  A.  1915C 
1  Ann.  Cas.  1915B  475;    Southern 
Ry.  Co.  V.  Mays,  152  C.  C.  A.  91,  239 
Fed.  41;  Philadelphia  &  R.  R.  Co. 
V.  Marland,   152   C.   C.   A.   51,  239 
Fed.  1,  15  N.  C.  C.  A.  402;    New 
York  Cent.  &  H.  River  R.  Co.  v. 
Salkaukus,    151  C.  C.   A.  628,  238 
Fed.  778;    Cincinnati,  N.  0.   &  T. 
P.  R.  Co.  v.  Thompson,  149  C.  C.  A. 
211,  236  Fed  1;   Portland  Teminal 
Co.  v.  Jarvis,  141  C.  C  A.  562,  227 
Fed.  8,  11  N.  C.  C.  A.  1036;   New 
York,  N.  H.  &  H.  R.  Co.  v.  Vizvari, 
126  C.  C.  A.  632,  210  Fed.  118,  L.  R. 
A.  1915C  9. 

Alabama.     Southern   Ry.  Co.   v. 
Fisher,  Ala.  (,  74  So.  580. 


Arkansas.  Kansas  City  South- 
ern R.  Co.  v.  Livesay,  118  Ark.  304, 
177   S.  W.   875. 

Georgia.     Southern    Ry.    Co.    v. 

Blackwell,  Ga.  App.  ,  93 

S.  E.  321;   Atlantic  Coast  Line  R. 

Co.  V.  Kennedy,  Ga.  App.  — , 

92  S.  E.  973;  Macon,  D.  &  S.  R.  Co. 
V.  Musgrove,  145  Ga.  647,' 89  S.  E. 
767;  Charleston  &  W.  C.  R.  Co.  v. 
Slyvester,  17  Ga.  App.  85.  86  S.  E. 
275;  Kirbo  v.  Southern  R.  Co.,  16 
Ga.  App.  49,  84  S.  E.  491. 

Indiana.      Cincinnati,    H.     &  D. 

Ry.     Co.  v.  Gross,  Ind.  App. 

,  111  N.  E.  653. 

Kansas.  Duran  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  100  Kan.  189,  165 
Pac.  653;  Spinden  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  95  Kan.  474,  148 
Pac.  747;  Barker  v.  Kansas  City, 
M.  &  O.  R.  Co.,  88  Kan.  767,  43 
L.  R.  A.  (N.  S.)  1121,  129  Pac. 
1151. 

Kentucky.  Louisville  &  N.  R.  Co. 
V.  Williams',  Adm'r,  175  Ky.  679, 
194  S.  W.  920;  Jones  v.  Southern 
Ry.  in  Kentucky,  175  Ky.  455v  194 
S.  W.  558;  Lexington  &  E.  R.  Co. 
V.  Stacy,  172  Ky,  195,  189  S.  W. 
25;  Judd's  Adm'x  v.  Southern  R. 
Co.,  171  Ky.  832,  188  S.  W.  880; 
Louisville,  H.  &  St.  L.  R.  Co.  v. 
Wright,  170  Ky.  230,  185  S.  W. 
861;  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  v.  Claybourne's  Adm'r,  169  Ky. 
315,  183  S.  W.  903;  Louisville  & 
N.  R.  Co.  V.  Henry,  167  Ky.  151, 
180  S.  W.  74;  Louisville  &  N.  R.  Co- 
V.  Patrick,  167  Ky.  118,  180  S.  W. 
55;  Davis  v.  Chesapeake  &  O.  R. 
Co.,  166  Ky.  490,  179  S.  W.  422; 
Chesapeake  &  O.  R.  Co.  v.  Walker's 
Adm'r,  159  Ky.  237,  167  S.  W.  123/ 
Glenn  v.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co,  157  Ky.  453,  163  S.  W.  461; 


<^  55J-]  Assumption    of   Risk.  981 

onaetod   for  the   safety  of  om])loy('s,   tlio  defense  of  as- 


Helm  V.  Cincinnati,  N.  0.  &  T.  P. 
R.  Co.,  156  Ky.  240,  IGO  S.  W. 
945. 

Maine.  Norton  v.  Maine  Cent. 
R.  Co.,  — —  Me.  ,  100  Atl.  598. 

Michigan.        Chapman    v.    Ann 

Arbor  R.  Co.,  Mich.  ,  16.3 

N.  W.   107;    Sims  v.  Minneapolis, 

St.  P.  &  S.  S.  M.  Ry.  Co., Mich. 

,  162  N.  W.  988. 

Missouri.  Winslow  v.  Missouri 
K.  &  T.  Ry.  Co.  (Mo.  App.),  192 
S.  W.  121;  Young  v.  Lusk,  2G8 
Mo.  625,  187  S.  W.  849;  Cross  v. 
Chicago,  B.  &  Q.  R.  Co.,  191  Mo. 
App.   202,   177   S.   W.   1127. 

Montana.  Sorenson  v.  Northern 
Pac.  R.  Co.,  53  Mont.  268,  163  Pac. 
560. 

Nebraska.  Henderson  v.  Union 
Pac.  R.  Co.,  100  Neb.  734,  161  N.  W. 
267. 

New  Hamphhire.  Topore  v.  Bos- 
ton &  M.  R.  R.,  N.  H.  , 

100  Atl.   153. 

New  Jersey.  Willever  v.  Dela- 
ware, L.  &  W.  R.  Co.,  89  N.  J.  L. 
697,  99  Atl.  321. 

New  York.  Swartwood  v.  Lehigh 
Valley  R.  Co.,  169  N.  Y.  App.  Div. 
759,  155  N.  Y.  Supp.  778. 

North  Dakota.  Manson  v.  Great 
Northern  R.  Co..  31  N.  D.  643,  155 
N.  W.  32. 

Oklahoma.     Chicago,  R.  I.  &  P 

Ry.  Co.  V.  Hughes,  ■ — -  Okla. 

166  Pac.  411;   Chicago,  R.  I.  &  P 

Ry.  Co.  V.  Jackson, Okla. 

160  Pac.  736:    Chicago,  R.  I.  &  P 

Ry.  Co.  V.  Rogers, Okla. 

159  Pac.  1132;  Chicago,  R.  I.  &  P 
Ry.  Co.  V.  Felder,  - —  Okla.  ^— 
155  Pac.  529. 

Oregon.  Oberlin  v.  Oregon 
Wasliington  R.  &  Nav.  Co.,  71  Ore 
177,  142  Pac.  554. 


Pennsylvania.  Haas  v.  Erie  R. 
Co.,  254  Pa.  235,  98  Atl.  867;  Hart- 
man  V.  Western  Maryland  R.  Co., 
246   Pa.   460,   92   Atl.   698. 

Texas,     Chicago,  R.  I.  &  G.  Ry. 

Co.  V.  De  Bord, Tex. 192 

S.   W.   767;    Atchison,   T.   &  S.   F. 

Ry.  Co.   V.   Ayers,  Tex.   Civ. 

App.  ,  192  S.  W.  310;  Gulf,  C. 

&  S.  F.  Ry.  Co.  V.  Cooper, Tex. 

Civ.  App.  191  S.  W.  579;  Kansas 
City,  M.  &  O.  Ry.  Co.  of  Texas  v. 

Finke,  Tex.  Civ.   App.  , 

190   S.   W.  1143;    Texas  &  P.   Ry. 

Co.  V.  White,  Tex.  Civ.  App. 

,   177  S.  W.   1185;    Ft.  Worth 

&  D.  C.  Ry.  Co.  V.  Copeland,  

Tex.    Civ.    App.    • ,    164    S.    W. 

857,  Missouri,  K.  &  T.  Ry.  Co.  of 

Texas  v.  Scott, Tex.  Civ.  App. 

,   160   S.  W.   432. 

Vermont.  Robie  v.  Boston  &  M. 
R.  R..  Vt.  ,  100  Atl.  925. 

Virginia.  Norfolk  &  W.  R.  Co. 
v.  Tucker's  Adm'x,  120  Va.  540,  91 
S.  E.  614;  Chesapeake  &  O.  R.  Co. 
V.  Meadows,  119  Va.  33,  13  N.  C. 
C.   A.   376,   89   S.    E.   244. 

Washington.     Toler  v.  Northern 
Pac.  R.  Co.,  94  Wash.  360,  162  Pac- 
538;      Swanson    v.     Oregon-Wash- 
ington  R.   &   Nav.   Co.,   92   Wash. 
423.    159    Pac.   379. 

West  Virginia.  Hull  v.  Virginian 
R.  Co.,  78  W.  Va.  25,  88  S.  E.  1060. 

Wisconsin.       Reul  v.  Wisconsin 

N.  W.  Ry.  Co.,  Wis.  ,  163 

N.  W.  189;  Hovaneck  v.  Great  Nor- 
thern R.  Co.,  165  Wis.  511,  162  N. 
W.  927;  Smiegil  v.  Great  Northern 
R.  Co.,  165  Wis.  57,  160  N.  W. 
1057;  Graber  v.  Duluth,  S.  S.  &  A. 
R.  Co..  159  Wis.  414,  150  N.  W. 
489. 

A  charge  to  a  jury  that  an  em- 
ploye only  assumed  the  ordinary 
risk  of  his  employment  and  that 


982  Injuries  to  Interstate   Employes.        [<§>  554 

sumption  of  risk  shall  have  its  former  effect  as  a  com- 
plete bar  to  an  action  nnder  the  statutes.  The  court 
in  tliat  case  said:  "It  seems  to  us  that  section  4,  in 
eliminating  the  defense  of  assumption  of  risk  in  the  cases 
indicated,  quite  plainly  evidences  the  legislative  intent 
that  in  all  other  cases  such  assnmption  shall  have  its 
former  effect  as  a  complete  bar  to  the  action."  An  in- 
struction given  by  the  trial  court  in  that  case  pursuant 
to  a  statute  of  the  state  so  providing  that  a  railroad 
em])loye  did  not  assume  any  defective  appliance  fur- 
nished by  the  employer,  was  held  erroneous  and  not  a 
proper  application  of  the  rule  under  the  federal  act. 
The  court  held  that  under  the  common  law  doctrine  of 
assumption  of  risk,  the  employe  assumed  defects  due  to 
the  master's  negligence  when  these  defects  and  risks 
arising  therefrom  were  known  to  him  or  were  open  and 
obvious  or  plainly  observable. 

§  555.  Doctrine  of  Horton  Case  Re-examined  and 
reaffirmed  by  National  Supreme  Court.  The  con- 
struction which  the  national  Supreme  Court,  in  the 
Horton  case,^  placed  upon  section  4  of  the  Federal  Act, 
viz.,  that  Congress  by  eliminating  the  defense  of  as- 
sumption of  risk  in  cases  where  the  violation  of  any 
federal  statute  for  the  safety  of  employes  contributed  to 
the  injury,  plainly  indicated  a  legislative  intent  that,  in 
all  other  cases,  assumption  of  risk  should  have  its  former 
eifect  as  a  complete  bar  to  an  action  for  damages,  was 

he  never  assumed  the  risk  of  the  the    conditions    and    the    dangers, 

negligence  of  his  fellow  employes  or   if   these   are   obvious,    and    he 

was  erroneous;   for  "if  the  negli-  continues     in     the     employment, 

gence   of  all  these  should  be  ex-  without   objection,   he   is   held   to 

eluded  in  actions  under  the  Em-  have   assumed   the  risk,   although 

ployers'  Liability  Act,  it  is  diffcult  he  may  be   injured   by   reason  of 

to  say  what  practical  application  some    neglect    of    the    employer, 

could  ever  be  given  in  them  to  the  Gaddy   v.   North   Carolina  R.    Co., 

established  doctrine  concerning  as-       ■  N.  C.  ,  95  S.  E.  925. 

sumption  or  risk."     Boldt  v.  Pen-  3.     233  U.  S.  492,  58  L.  Ed.  1062, 

nsylvania   R.   Co.,    245    U.   S.   441,  34  Sup.  Ct.  635,  8  N.  C.  C.  A.  834, 

62  L.  Ed. ,  38  Sup.  Ct.  139.  L.  R.  A.  1915C  1,  Ann.  Cas.  1915B 

If  an  employe  has  knowledge  of  475. 


§  555J  AssuMi'i  ION    OF   Klsk.  983 

re-examined  by  the  same  ('(nut  two  years  later  in  tlio 
case  of  Jacobs  v.  Soutliei-ii  R.  (0/  It  was  contended  by 
tlie  ])laintirf  in  eiior  llial  employes  en^a^ed  in  interstate 
coininerce  assnnied  only  the  ordinary  risks  and  hazards 
of  the  business  of  a  common  carrier  and  did  not  assume 
the  risk  of  tlie  carrier's  nciiiincnce  under  any  conditions; 
that  knowledi^e  by  an  ctiiplovc  of  a  defective  or 
dan^-erous  condition,  due  to  ne,u•li,^•ence,  did  not  bar  a 
recovery,  but  mi^ht  be  considered  in  determinin<?  con- 
tributory negligence  for  the  puqiose  of  reducing  the 
damages  only,  and  that  whatever  the  evidence  might  be 
as  to  an  employe's  knowledge  of  a  dangerous  condition 
he  did  not  assume  the  risk  if  the  carrier  was  negligent. 
''The  argument  to  sustain  the  assertion,"  said  the 
court  in  reaffii-ming  its  former  ruling,  "and  to  present 
what  he  deems  to  be  the  true  construction  of  act  is 
elal)()rate  and  involved.  It  would  extend  this  oiiinion 
too  much  to  answer  it  in  detail.  He  does  not  ex])ress 
hig  contention  in  any  pointed  proposition.  He  makes  it 
through  a  comparison  of  the  sections  of  the  act  and  in- 
sists that  to  retain  the  common-law  doctrine  of  the 
assumption  of  risk  is  to  put  the  fourth  section  in  conflict 
with  the  other  sections.  The  basis  of  the  contention  is 
that  the  act  was  intended  to  be  punitive  of  negligence 
and  does  not  cast  on  the  employees  of  carriers  the 
assumi)tion  of  risk  of  any  condition  or  situation  causM 
by  such  negligence.  This  is  manifest,  it  is  insisted,  from 
the  ])rovisions  of  the  third  section  of  the  act  which  pro- 

4  241  U.  S.  229,  60  L.  Ed.  97ii  same  place  in  the  way  described 
:;6  Sup.  Ct.  588.  The  point  involv-  by  the  witnesses  for  many  years 
cd  in  this  case  was  the  action  of  prior  to  the  accident,  and  that 
the  trial  court  in  giving  the  follow-  the  plaintiff  had  failed  to  show 
ing  charge  to  the  jtiry:  "The  that  he  had  made  complaint  or  ob- 
Court  instructs  the  jury  that  if  jection  on  account  of  the  cinder 
they  believe  from  the  evidence  that  pile,  then  he  assumed  the  risk  of 
the  existence  of  the  cinder  pile  danger  from  the  cinder  pile,  if 
was  known  to  the  plaintiff  or  that  there  was  any  danger  in  it.  and 
he  had  been  working  on  the  South-  the  Act  of  Congress  Approved 
ern  Railway  at  Lawrenceville  for  April  22,  1908,  permits  this  de- 
more  than  a  year,  and  that  the  fense:  and  the  jury  should  find 
cinders    had    been    piled    at    the  their   verdict   for  the   defendant." 


984  JxJUEiE.s  TO  Interstate   Employes.        ['§  555 

vides  tliat  tlie  contributory  negiig'ence  of  the  employee 
'  shall  not  bar  a  recovery, '  and  of  the  fifth  section  which 
precludes  the  carrier  from  exempting  itself  from  lia- 
bility. This  purpose  is  executed  and  can  only  be  ex- 
ecuted, it  is  urged,  by  construing  the  words  of  Section  4 
(which  we  shall  jiresently  quote)  to  apply  to  'the 
ordinary  risks  inherent  in  the  business  the  unavoidable 
risks  which  are  intrinsic  notwithstanding  the  per- 
formance by  the  carrier  of  its  personal  duties.  They  do 
not  include  the  'secondary  and  ulterior'  risks  arising 
from  abnormal  dangers  due  to  the  employer's  negli- 
gence.' And,  further:  'The  object  of  this  section  was 
Tiot  to  adopt  by  hnplicalion  the  common-law  defense  of 
assumption  of  risk  of  such  abnormal  dangers.  Its  object 
was  in  ej press  terms  to  exclude  the  defense  which,  be- 
fore the  passage  of  the  act,  was  available  to  the  carrier 
in  determining  what  are  the  'risks  of  his  employment' 
assumed  by  the  employee.  These,  then,  are  the  con- 
siderations which  plaintiff  says  were  not  submitted  to 
the  court  in  the  Horton  Case  and  which  he  urges  to 
support  his  contention  that  assumption  of  risk  has  been 
abolished  absolutely.  We  are  unable  to  concur.  The 
contention  attributes  to  Congress  the  utmost  confusion 
of  thought  and  language  and  makes  it  express  one 
meaning  when  it  intended  another.  The  language  of 
section  4  demonstrates  its  meaning.  It  provides  that  in 
any  action  brought  by  an  employe  he  '  shall  not  be  held 
to  have  assumed  the  risks  of  his  employment  in  any 
case  where  the  violation  by  said  common  carrier  of  any 
statute  enacted  for  the  safety  of  employes  contributed  to 
the  injury  or  death  of  such  employe.'  It  is  clear,  there- 
fore, that  the  assumption  of  risk  as  a  defense  is 
abolished  only  where  the  negligence  of  the  carrier  is  in 
violation  of  some  statute  enacted  for  the  safety  of  em- 
ployes. In  other  cases,  therefore,  it  is  retained.  And 
such  is  the  ruling  in  the  Horton  Case,  made  upon  due 
consideration  and  analysis  of  the  statute  and  those  to 
which  it  referred." 

§  556.     Effect  of  State  Constitutions  and  Statutes 
Abolishing  or  Modifying  Assumption  of  Risk  on  Inter- 


§  556]  Assumption    of   Risk,  985 

state  Employes.  A  statute  of  a  state  abolishing  or 
iii(»(lir>  iiii;-  llic  comiiion  law  defense  of  assumption  of 
lisk,  (Iocs  not  govern  in  actions  for  injuries  by  employes 
of  eoninion  carriers  by  railroad  while  engaged  in  inter- 
state commerce.'  Thus,  a  statute  of  the  state  of  Te.xas 
])rovided  that  if  an  employer  had  knowledge  of  a  neg- 
ligent defect,  the  emi)loye  did  not  assume  the  risk  of 
injuiy  raising  therefrom.  The  court  held  that  this  stat- 
ute had  no  a})plication  to  employes  of  railroads  working 
in  intei'state  commerce.'*  The  constitution  of  the  state  of 
Oklahoma  re(iuires  the  submission  of  the  defense  of 
assumption  of  risk  as  a  question  of  fact  for  the  jury. 
In  an  action  under  the  federal  act  it  was  insisted  that 
this  provision  controlled  and  that  the  court  could,  in  no 
case,  declare  as  a  matter  of  law  that  an  employe  assmned 
the  risk.  But  it  was  held  that  this  defense  as  to  inter- 
state employ(^s  was  not  effected  by  the  constitutional 
])rovisi()ii.  "In  cases  where  the  evidence  is  undisputed 
and  the  circumstances  permit  of  but  one  conclusion,  the 
question  must  be  decided  by  the  court  as  a  matter  of 
law,  and  not  by  the  jury  as  a  matter  of  fact,  since  such 
is  the  common  law,  and  such  must  be  the  result  in  our 
courts  in  these  cases  where  the  federal  act  creating  the 
liability  likewise  allows  the  common  law  defense."' 
A  statute  of  the  state  of  Ohio  abolishing  the  rule  of  the 
common  law  as  to  assumption  of  risk  in  injuries 
occasioned  by  defects  in  rails,  tracks  or  other  macliin- 

5.  Knapp  v.  Great  Northern  R.  by  the  Texas  statutes  to  be  applied 
Co.,  130  Minn.  405,  153  N.  W.  848;  in    cases    of    assumed    risk.     The 

Texas  &  P.  Ry.  Co.  v.  White,  rule  that  a  state  law  must  yield 

Tex.    Civ.    App.    ,    177    S.    W.  ^vhen  a  federal  law  has  occupied 

1185;  Southern  Ry.  Co  ,  v.  .Jacobs,  ^j^^  ^^^^  ^^^  ^  question  of  interstate 

116  Va.  189,  81  S.  E.  99.  commerce  is  universally  recogniz- 

6.  Chicago.  R.  I.  &  G.  Ry.  Co  ^^^   ^^   .^^  correctness   there 

V.   De   Bord,  Tex.  ,   192 

S.  W.  767,  wherein  the  court  said: 
"It  is  clear  to  us  that  by  this  act 

Congress  occupied  the  field  of  as-  Congress  to  act." 

sumed    risk,    and    that   such    law  7.  Chicago.   R.   I.   &   P.   Ry.   Co. 

would  govern  in  this  case  to  the       v.   .Jackson,  Okla.  .   160 

exclusion   of  the   rule   announced       Pac.  736. 


can   be   no  question;    the   federal 
Constitution     having     authorized 


986 


IxjuRTEv^  TO  Interstate   Empi^oyes, 


[§  556 


ery,  was  inapplicable  to  interstate  employes  suing  un- 
der the  federal  act.* 

§  557.  Decisions  of  Federal  Courts  Control  in 
Determining  When  Employe  Assumes  Risk.  Whenever 
Congress  enacts  statutes  pursuant  to  its  power  under 
the  commerce  clause,  such  laws,  when  enforced  in  both 
state  and  federal  courts,  must  be  construed  in  the  light 
of  federal  decisions  and  applicable  common  law  prin- 
ciples as  interpreted  and  applied  in  the  federal  courts  to 
the  exclusion  of  common  law  rules  different  therefrom 
enforced  in  state  courts."  It  therefore  follows  that 
even  in  actions  under  the  federal  act  prosecuted  in  state 
courts,  the  decisions  of  the  state  courts  do  not  govern 
in  determining  the  application  of  the  doctrine  of 
assumption  of  risk  if  the  rules  therein  adopted  differ 
from  those  applied  in  the  federal  courts.'^ 


8.  Toledo,  St.  L.  &  W.  R.  Co.  v. 
Slavin,  236  U.  S.  454,  59  L.  Ed. 
671,  35   Sup.  Ct.  306. 

9.  Southern  R.  Co.  v.  Gray, 
241  U.  S.  333,  60  L.  Ed.  1030,  36 
Sup.  Ct.  558;  Southern  R.  Co.  v. 
Prescott,  240  U.  S.  632.  60  L.  Ed. 
836,  36  Sup.  Ct.  469;  Great  North- 
ern R.  Co.  V.  Wiles,  240  U.  S.  444, 
60  L.  Ed.  732,  36  Sup.  Ct.  406; 
Cleveland,  C.  C.  &  St.  L.  R.  Co. 
V.  Dettlebach,  239  U.  S.  588,  60 
L.  Ed.  453,  36  Sup.  Ct.  177;  Cen- 
tral Vermont  R.  Co.  v.  White,  238 
U.  S.  507,  59  L.  Ed.  1433,  35 
Sup.  Ct.  865,  9  N.  C.  C.  A.  265, 
Ann.  Cas.  1916B  252;  Adams  Exp. 
Co.  V.  Croninger,  226  U.  S.  491,  57 
L.  Ed.  314,  33  Sup.  Ct.  148,  44  L.  R. 
A.  (N.  S.)  257.  See  Section  18, 
supra. 

10.  Seaboard  Air  Line  R.  Co  v. 
Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,  34  Sup.  Ct.  635,  8  N.  C.  C.  A. 
834,  L.  R.  A.  1915C  1,  Ann.  Cas. 
1915B   475;    Glenn   v.    Cincinnati, 


N.  O.  &  T.  P.  R.  Co.,  157  Ky  453, 
163  S.  W.  461;   Castonia  v.  Maine 

Cent.  R.  R. N.  H. ,  100  Atl. 

601;  Freem.an  v.  Powell, Tex. 

Civ.    App.    ,    144    S.    W.    1033. 

Contra:  Fish  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  263  Mo.  106,  8  N.  C.  C.  A. 
538,  Ann.  Cas.  1916B  147,  172  S. 
W.  340. 

The  case  of  Williams  v.  Pryor, 
272  Mo.  613,  200  S.  W.  53,  in  which 
the  Missouri  Supreme  court  re- 
fused to  apply  the  doctrine  of  as- 
sumption of  risk  as  interpreted  in 
the  national  courts  but  followed  its 
own  rulings  to  the  effect  that  an 
employe  does  not  under  any  cir- 
cumstances assume  the  negligence 
of  the  master,  was  taken  to  the 
federal  Supreme  court  on  writ  of 
certiorari  and  was  pending  in 
that  court  at  the  time  of  the  pub- 
lication of  this  treatise.  See 
Boldt  V.  Pennsylvania  R.  Co.,  245 

U.  S.  441,  62  L.  Ed.  ,  38  Sup. 

Ct.  139. 


1 


§  558] 


Assumption    of   Kisk. 


987 


§  558.  Ordinary  Risks  and  Known  or  Obvious 
Extraordinary  Risks  Assumed  by  Interstate  Employes. 
The  iialurc  and  clcnu'iils  of  llic  doclriiH*  of  assiiini)ti<)n 
of  risk  as  applied  to  interstate  employes  of  interstate 
carriers  under  tlie  federal  act  have  been  well  estaljlislied 
in  a  series  of  controlling  decisions  by  the  United  States 
8ui)reme  Court. ^'  Tlie  risks  that  may  be  assumed  by 
an  interstate  em])loye  are  of  two  kinds,  ordinary  and 
extraoi-diiiaiy.  Ordinary  risks  are  those  that  are 
iiormally  incident  to  the  occupation  in  which  an  em- 
])loye  volunlarily  engages.     An  em])loye  is  conclusively 


11.  Boldt  V.  Pennsylvania  R.  Co., 

245   U.   S.   441   fi2   L.   Ed.  ,   38 

Sup.  Ct.  139;  Chicago  &  N.  W.  R. 
Co.  V.  Bower,  241  U.  S.  470,  60  L. 
Ed.  1107,  36  Sup.  Ct.  624;  Cliesa- 
pealte  &  0.  R.  Co.  v.  Proffitt,  241  U. 
S.  462,  f30  L.  Ed.  1102,  36  Sup.  Ct. 
620;  Soutiiern  R.  Co.  v.  Gray,  241 
U.  S.  333,  60  L.  Ed.  1030,  36  Sup.  Ct. 
558;  Chesapeake  &  O.  R.  Co.  v. 
De  Atley,  241  U.  S.  310,  60  L.  Ed. 
1016,  36  Sup.  Ct.  564;  Louisville 
&  N.  R.  Co.  V.  Stewart,  241  U.  S. 
261,  60  L.  Ed.  989,  36  Sup.  Ct.  586; 
Baugham  v.  New  York,  P.  &  N.  R. 
Co.,  241  U.  S.  237.  60  L.  Ed.  977,  36 
Sup.  Ct.  592,  13  N.  C.  C.  A.  138; 
Jacobs  v.  Southern  R.  Co.,  241 
U.  S.  229,  60  L.  Ed.  970,  36  Sup. 
Ct.  588,  Seaboard  Air  Line  Ry. 
V.  Horton,  239  U.  S.  595,  60 
L.  Ed.  458,  36  Sup.  Ct.  180; 
Kanawha  &  M.  R.  Co.  v.  Kerse 
239  U  S.  576,  60  L.  Ed.  448,  36 
Sup.  Ct.  174;  Central  Vermont  R. 
Co.  V.  White,  238  U.  S.  507.  59  L. 
Ed.  1433.  35  Sup.  Ct.  865;  9  N.  C. 
C.  A.  265.  Ann.  Cas.  1916B  252; 
Seaboard  Airline  Ry.  v.  Padgett, 
236  U.  S.  668,  59  L.  Ed.  777,  35  Sup. 
Ct.  481;  McGover  v.  Philadelphia 
&  R.  R.  Co  ,  235  U.  S.  389,  59  L. 
Ed.  283,  35  Sup.  Ct.  127,  8  N.  C. 
C.  A.  67;  Yazoo  &  M.  V.  R.  Co.  v. 


Wright,  235  U,  S.  376,  59  L.  Ed. 
277,  35  Sup.  Ct.  130;  Southern  R. 
Co.  v.  Gadd,  233  U.  S.  572,  58  L. 
Ed.  1099,  34  Sup.  Ct.  696;  Sea- 
board Air  Line  R.  Co  v.  Horton, 
233  U.  S.  492,  58  L.  Ed.  1062, 
34  Sup.  Ct.  635,  8  N.  C.  C. 
A.  834;  L.  R.  A.  1915C  1,  Ann. 
Cas.  1915B  475;  Gila  VaUey  G. 
&  N.  R.  Co.  V.  Hall,  232  U.  S. 
94,  58  L.  Ed.  521,  34  Sup.  Ct.  229, 
aff'g  13  Ariz.  170,  1,  N.  C.  C.  A.  362, 
112  Pac.  845;  Texas  &  P.  R.  Co.  v. 
Harvey,  228  U.  S.  319.  57  L.  Ed. 
852,  33  Sup.  Ct.  518;  Schlemmer 
v.  Buffalo,  R.  &  P.  R.  Co.,  220  U.  S. 
590,  55  L.  Ed.  596,  31  Sup.  Ct.  561; 
Butler  v.  Frazee,  211  U.  S.  459,  53 
L.  Ed.  281,  29  Sup.  Ct.  136;  Choc- 
taw, O.  &  G.  R.  Co.  v.  McDade.  191 
U.  S.  64,  48  L.  Ed.  96,  24  Sup. 
Ct.  24;  Texas  &  P.  R.  Co.  v. 
Archibald,  170  U.  S.  665,  42 
L.  Ed.  1188  18  Sup.  Ct.  777; 
Philadelphia  &  R.  R.  Co.  v. 
Maryland,  152  C.  C.  A.  51,  239  Fed, 
1.  15  N.  C.  C.  A.  402;  Cincinnati.  N. 
0.  &  T.  P.  R.  Co.  V.  Thompson, 
149  C  C.  A.  211,  236  F^ed.  1:  Port- 
land Terminal  Co.  v.  Jarvis,  141 
C  C.  A.  562,  227  Fed.  8,  11  N.  C.  C. 
A.  1036;  Michigan  Cent.  R.  Co.  v. 
Schaffer,  136  C.  C.  A.  413,  220  Fed. 
809. 


988 


IxjuEiES  TO  Interstate  Employes.        [§  558 


presuiued  to  have  knowledg-e  of  sucli  risks  and  assumes 
injuries  arising  therefrom.'-  Such  ordinary  risks  are 
assumed  by  an  employe  whether  he  is  actually  aware  of 
them  or  not;  for  the  dangers  and  risks  that  are 
normally  or  necessarily  incident  to  his  occupation  are 
presumably  taken  into  account  in  fixing  the  rate  of 
wages.  But  risks  of  another  sort,  not  naturally  incident 
to  the  occupation,  may  arise  out  of  the  failure  of  the 
carrier  to  exercise  due  care  with  respect  to  providing 
a  safe  place  of  work  and  suitable  and  safe  appliances 
for  the  work.  These  are  known  as  extraordinary  risks. 
An  employe  has  the  right  to  assume  that  his  employer 
has  exercised  due  care  for  his  safety.  He  is  not  to  be 
treated  as  assuming  these  extraordinary  risks  arising 
from  defects  due  to  the  negligence  of  the  employer 
unless  he  has  knowledge  of  them  and  the  danger  arising 
therefrom,  or  unless  the  risk  and  danger  are  so  obvious 
that  an  ordinarily  prudent  person  under  similar  cir- 
cumstances would  have  known  the  risk  and  appreciated 
the  danger  arising  therefrom."     The  following  excerpts 


12.  United  States.  Chicago  &  N. 
W.  R.  Co.  V.  Bower,  241  U.  S.  470, 
60  L.  Ed.  1107,  36  Sup  Ct.  624; 
Chesapeake  &  O.  R.  Co.  v.  De  Atley,, 
241  U.  S.  310.  60  L.  -d.  1016,  36  Sup. 
Ct.  564;  Jacobs  V.  Southern  R. 
Co.,  241  U.  S.  229,  60  L.  Ed.  970. 
36  Sup.  Ct.  588;  Seaboard  Air 
Line  Ry.  v.  Horton,  239  U.  S.  595. 
60  L.  Ed.  158,  36  Sup.  Ct.  180. 

Arizona.  Guana  v.  Southern 
Pac.  Co.,  15  Ariz.  413.  L.  R.  A. 
1917D  1206,  139  Pac.  782. 

Georgia.  Hightower  v.  Southern 
R.  Co.,  146  Ga.  279,  L.  R.  A.  1917C 
481,  91  S.  E.  52. 

Kentucky.  Louisville,  H.  &  St. 
L.  R.  Co.  V.  Wright,  170  Ky,  230, 
185  S.  W.  861;  Truesdell  v.  Chesa- 
peake &  O.  R.  Co.,  159  Ky.  718,  169 
S.  W.  471. 

Michigan.  Gaines  v.  Grand 
Trunk  R.  Co.  ot  Canada,  193  Mich. 


398,  159  N.  W.  542. 

Minnesota.  Thompson  v.  Min- 
neapolis &  St.  L.  R.  Co.,  133  Minn. 
203.   158  N.   W.   42. 

Missouri.  Cross  v.  Chicago,  B. 
&  Q.  R.  Co.,  191  Mo.  App.  202,  177 
S.  W.  1127. 

Virginia.  Chesapeake  &  O.  R. 
Co  V.  Meadows,  119  Va.  33,  13  N. 
C.  C.  A.  376,  89  S.  E.  244. 

West  Virginia.  Hull  v.  Virginian 
R.  Co.,  78  W.  Va    25,  88  S.  B.  1060. 

Wisconsin,  Smiegil  v.  Great 
N.  R.  Co.,  165  Wis.  57,  160  N.  W. 
1057;  Graber  v.  Duluth,  S.  S.  & 
A.  R.  Co.,  159  Wis  414,  150  N. 
W.  489. 

13.     Alabama.     Western   Ry.   of 

Alabama  v.  Mays, Ala. . 

72  So.  641;  Southern  Ry.  Co.  v. 
Fisher, Ala. ,  74  So.  580. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Howard,  124  Ark.  588, 


^  558J 


AssuMFTlo^•    (JF    Klsk. 


989 


from    decisions   of    the    United    States   Supreme    (Joui-t 
construing  the  Federal  Enii)l()y('rs'  Ijial)ility  Act  illus- 


188  S.  W.  14;  Kansas  City  S.  Ry. 
Co.  V.  Livesay,  118  Ark.  304,  177 
S.  W.  875;  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Birch,  89  Ark  424,  28 
L.  R.  A.  (N.  S.)  1250,  117  S.  W. 
24:3. 

Georgia.       Atlantic  Coast   Line 

R.  Co.  V.  Kennedy,  Ga.  , 

92  S.  E.  973;  Higlitower  v.  South- 
ern R.  Co.,  146  Ga.  279,  L.  R.  A. 
1917C  481,  £1  S.  E.  52;  Macon,  D. 
&  S.  R.  Co.  V.  Musgrove,  145  Ga. 
647,  89  S.  E.  767;  Charleston  &  W. 
C.  R.  Co.  V.  Sylvester,  17  Ga.  App. 
85,  86  S.  E.  275;  Kirbo  v.  South- 
ern R.  Co.,  16  Ga.  App.  49,  84  S. 
E.  491;  Emanuel  v.  Georgia  &  F. 
R.  Co.,  142  Ga.  543,  8  N.  C  C. 
A.  25,  83  S.  E.  230. 

Kansas.  Duran  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  100  Kan.  189,  165 
Pac.653;  Smith  v.  St.  Louis  &  S.  F. 
R.  Co.  95  Kan.  451,  148  Pac.  759; 
Spindem  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  95  Kan.  474,  148  Pac.  747. 

Kentucky.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V  York,  176  Ky.  9, 
194  S.  W.  1C34;  Jones  v.  Southern 
Ry.  in  Kentucky,  175  Ky.  455,  194 
S.  W.  558;  Young  v.  Norfolk  &  W. 
R.  Co.,  171  Ky.  510,  188  S.  W.  621; 
Louisville,  H.  &  St.  L.  R.  Co.  v. 
Wright,  170  Ky.  230, 185  S.  W.  861; 
Cincinnati,  N.  O  &  T.  P.  R.  Co.  v. 
Claybourne's  Adm'r,  169  Ky.  315, 
183  S.  W.  903;  Louisville  &  N.  R. 
Co.  V.  Patrick,  167  Ky.  118,  180 
S.  W.  55;  Davis  v.  Chesapeake  & 
O.  R.  Co.,  166  Ky.  490,  179  S.  W. 
422;  Cincinnrtl,  N.  O.  &  T.  P.  R. 
Co.  V.  Goldston,  156  Ky.  410,  161 
S.  W.  246. 

Louisiana.  Lanis  v.  Illinois 
Cent.  R.  Co.,  140  La.  1,  72  So. 
788. 


Norton   v.   Maine  Cent 
—    Me.    ,    100    Atl. 


Maine. 
R.    Co., 
598. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Branson.  128  Md.  678,  98 
Atl.    225. 

Michigan.  Chapman  v.  Ann  Ar- 
bor  R.  Co.,  Mich.  ,    163 

N.  W.  107;  Sims  v.  Minneap- 
olis.  St.    P.    &   S.   S.    M.   Ry.    Co., 

Mich.  .   162  N.   W.  988; 

Gaines  v.  Grand  Trunk  R.  Co.  of 
Canada,  193  Mich.  398,  159  N.  W. 
542;  Chapman  v.  United  States 
Exp.  Co  ,  192  Mich.  654,  159  N. 
W.  308. 

Minnesota.  Marshall  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  131  Minn.  392, 
155  N.  W.  208. 

Missouri.  Winslow  v.  Missouri, 
K.  &  T.  Ry.  Co.  (Mo.  App.),  192 
S.    W,    121. 

Montana.  Sorenson  v.  North- 
ern Pac.  R.  Co.,  53  Mont.  268, 
163   Pac.   560. 

Nebraska.  Phillips  v.  Union  Pac. 
R.  Co.,  100  Neb.  157,  158  N.  W. 
966. 

New    Hampshire.      Castonia    v. 

Maine    Cent.    R.    R..    N.    H. 

— ,  100  Atl.  601;  Tapore  v.  Bos- 
ton &  M.  R.  R.,  N.   H.  , 

100   Atl.   153. 

New  Jersey.  Armbrecht  v.  Dela- 
ware, L.  &  W.  R.  Co.,  N.  J. 

L.   .    101    Atl.    203;     Willever 

V.  Delaware,  L.  &  W.  R.  Co.,  89 
N.  J.  L.  697,  99  Atl.  321;  Cetola 
v.  Lehigh  Valley  R  Co.,  89  N.  J.  L. 
691.  99  Atl.  310;  Grybowski  v. 
Erie  R.  Co.,  88  N.  J.  L.  1.  95  Atl 
764. 

North  Carolina.  Hinson  v.  At- 
lanta &  C.  Air  Line  R.  Co..  172 
N.  C.  646,  90  S.  E.  772;   Lloyd  v. 


990 


Injurte.*?   to   Interstate   Employes. 


[§  558 


trate  the  federal  rule  as  to  assumption  of  risks  by 
interstate  employes:  "While  an  em])loyee  assumes  the 
risks  and  dangers  ordinarily  incident  to  the  employment 
in  which  he  vohintarily  engages,  so  far  as  these  are  not 
attributable  to  the  negligence  of  the  employer  or  of 
those  for  whose  conduct  the  employer  is  responsible, 
the  em])loyee  has  a  right  to  assume  that  the  employer 
has  exercised  proper  care  with  respect  to  providing  a 
reasonably  safe  place  of  work  (and  this  includes  care 
in  establishing  a  reasonably  safe  system  or  method  of 
work)  and  is  not  to  be  treated  as  assuming  a  risk  that 
is  attributable  to  the  employer's  negligence  until  he 
becomes  aware  of  it,  or  it  is  so  plainly  observable  that 
he  must  be  presumed  to  have  known  of  it.""  "Some 
employments  are  necessarily  fraught  with  danger  to  the 


Southern  R.  Co.,  166  N.  C.  24,  7 
N.  C.  C.  A.  520,  81  S.  E.  1003. 

Oklahoma.     Chicago,  R.  I.  &  P- 

Ry.    Co.    V.    Jackson,    Okla. 

,  160  Pac.  736. 

Pennsylvania.  Falyk  v.  Penn- 
sylvania R.  Co.,  256  Pa.  397,  100 
Atl.  961. 

South  Carolina.  Ballenger  v. 
Southern  R.  Co.,  106  S.  C.  200.  90 
S.  E.  1019. 

Texas.     Gulf,  C.  &  S.  F.  Ry.  Co. 

V.  Hall,  Tex.  Civ.  App.  , 

196    S.    W.    613;     Chicago,    R.    I. 

&  G.  Ry.  Co.  V.  De  Bord, Tex. 

,    192    S.    W.    767;      GulC,    C. 

&   S.    F.    Ry.    Co.   V.   Cooper,  

Tex.    Civ.    App.    ,    191    S.    W. 

579;     Kansas   City,   M.   &   O.   Ry. 

Co.  of  Texas  v.  Finke,  Tex. 

Civ.  App.  — ,  190  S.  W.  1143; 
Panhandle  &  S.  F.  Ry.  Co  v.  Fitts, 

Tex.    Civ.   App. 188   S. 

W.  528. 

Vermont.  Robie  v.  Boston  &  M. 
R.   R.,  Vt.  ,   100   Atl.  925. 

Virginia.  Norfolk  &  W.  Ry.  Co. 
V.  Tucker's  Adm'x,  120  Va.  540, 
91  S.  E.  614. 


Washington.  Swanson  v.  Ore- 
gon-Washington R.  &  Nav.  Co.,  92 
Wash.    423,    159    Pac.    379. 

West  Virginia  Hull  v.  Virgin- 
ian R.  Co.,  78  W.  Va.  25,  88  S.  E. 
1060. 

Wisconsin.    Ruel  v.  Wisconsin  & 

N.    W.    Ry.    Co.,   Wis.   — — , 

163  N.  W.  189;  Smiegil  v.  Great 
Northern  R.  Co.,  165  Wis.  57,  160 
N.  W.  1057. 

"The  true  rule  deducible  from 
the  authorities  is  that  the  ser- 
vant assumes  all  the  ordinary, 
usual,  and  normal  risks  of  the 
business  after  the  master  has  used 
reasonable  care  for  his  protec- 
tion, and  also  all  such  other  risks 
as  he  knows  of,  or  which  were 
so  unquestionably  plain  and  clear 
that  he  must  have  known  of 
their  existence  and  their  danger 
to  him."  Chesapeake  &  O.  R.  Co. 
V.  Meadows,  119  Va.  33,  13  N. 
C.  C.  A.  376,  89   S.  E.  244. 

14.  Chesapeake  &  0.  R.  Co  v. 
Proffitt,  241  U.  S.  462,  60  L.  Ed. 
1102,  36  Sup.  Ct.  620. 


<§  558]  Assumption    of    Kisk.  991 

workman — dan<;or  tliat  must  be  and  is  confrontod  in 
tlie  line* of  liis  duty.  Sucli  dauii^ers  as  are  nornuillx'  and 
necessaril\'  incident  to  ilic  (x-ciipation  arc  ])i'<'suinal)l\' 
taken  into  the  account  in  lixin,<;'  tlierateol"  wa.ii^cs.  And 
a  woi'kman  of  nuituie  years  is  taken  to  assume  risks  of 
this  sort,  whether  he  is  actually  aware  of  tlieni  oi-  not. 
But  risks  of  another  sort,  not  natui'ally  incident  to  the 
occupation,  nuiy  arise  out  of  tlie  failure  of  the  employer 
to  exercise  due  care  with  lespect  to  providing  a  safe 
place  of  work  and  suitable  and  safe  appliances  for  the 
work.  These  the  employe  is  not  treated  as  assumins; 
until  he  becomes  aware  of  the  defect  or  disrei)air  and 
of  the  I'isk  arisinu-  from  it,  unless  defect  and  risk  alike 
are  so  obvious  that  an  ordinarily  j)rudent  person  under 
the  circumstances  would  have  observed  and  appreciated 
them.  These  distinctions  have  been  recognized  and 
api)lied  in  numerous  decisions  of  this  court.  Choctaw, 
Oklahoma  c^'  Gulf  R.  Co.  v.  McDade,  191  U.  S.  64,  68; 
Schlemmer  v.  Buffalo,  Rochester  &  Pittsburgh  Rv.  Co., 
220  U.  S.  590,  596;  Tex.  &  Pac.  Rv.  Co.  v.  Harvev,  228 
U.  S.  319,  321;  Gila  Valley  Ry.  Co.  v.  Hall,  232  U.  S.  94, 
102,  and  cases  cited.  When  the  employe  does  know  of 
the  defect,  and  appreciates  the  risk  that  is  attributable 
to  it,  then  if  lie  continues  in  the  em])loyment,  without 
objection,  or  without  obtaining  from  the  em])loyer  or  his 
representative  an  assurance  that  the  defect  will  be  reme- 
died, the  emi)loye  assumes  the  risk,  even  though  it 
arise  out  of  the  master's  breach  of  duty;"^''  "An 
employe  assumes  the  risk  of  dangers  normally  incident 
to  the  occupation  in  which  he  voluntarily  engages,  so  far 
as  these  are  not  attributable  to  the  employer's  negli- 
gence. But  the  employe  has  a  right  to  assume  that 
his  employer  has  exercised  proper  care  with  respect  to 
])roviding  a  safe  place  of  work, -and  suitable  and  safe 
appliances  for  the  work,  and  is  not  to  be  treated  as 
assuming    the    risk    arising    from    a    defect    that    is    at- 

15.  Seaboard  Air  Line  R.  Co.   C.  A.  834.  L.  R.  A.  191 5r  1.  Ann. 
V.  Horton,  233  U.  S.  492,  58  L.   Cas.  1915B  475. 
Ed.  1062.  34  Sup.  Ct.  635,  8  N.  C. 


992  IxjuBiES   TO   Interstate   Employes.        [<§  558 

tributable  to  the  employer's  negligence,  until  the  em- 
l)l()ye  becomes  aware  of  siieli  defect,  or  unless  it  is  so 
plainly  observable  that  he  may  be  presvnned  to  have 
known  of  it.  Moreover,  in  order  to  charge  an  employe 
with  the  assumption  of  a  risk  attributable  to  a  defect 
due  to  the  employer's  negligence,  it  must  appear  not 
only  that  he  knew  (or  is  presumed  to  have  known)  of 
the  defect,  but  that  he  knew  it  endangered  his  safety; 
or  else  such  danger  must  heve  been  so  obvious  that  an 
ordinarily  prudent  person  under  the  circumstances 
would  have  appreciated  it.'"" 

§  559.  Exception  to  Rule  that  Servant  Assumes 
Obvious  or  Known  Risks — Promises  of  Repair.  To  the 
rule  explained  in  the  foregoing  paragraph  that  an  em- 
ploye assumes  the  obvious  and  known  risks  of  his  em- 
ployment even  if  due  to  the  employer's  negligence,  an 
exception  is  made  where  the  master  has  promised  to 
remedy  the  defect  or  to  make  the  place  safe  and  the  serv- 
ant continues  to  work  in  reliance  upon  such  promise.^^ 
If  an  employe  knows  of  a  defect  and  appreciates  the 
risk  that  is  attributable  to  it,  then  he  assumes  the  risk 
even  though  it  arises  from  the  master's  breach  of  duty 
if  he  continues  in  the  employment  without  objection, 
or  without  obtaining  from  the  employer  an  assurance 
that  the  defect  will  be  remedied;  but  if  there  is  a  prom- 
ise of  reparation,  then,  during  such  time  as  may  be 
reasonably  required  for  its  performance,  or  until  the  par- 
ticular time  specified  for  its  performance,  the  employe, 
relying  upon  such  promise,  does  not  assume  the  risk  un- 
less at  least  the  danger  be  so  imminent  that  no  ordina- 
ls. Gila  VaUey,  G.  &  N.  R.  Co.  L.  Ed.  852,  33  Sup.  Ct.  518; 
V.  HaU,  232  U.  S.  94,  58  L.  Ed.  Southwestern  Brewery  &  Ice  Co. 
521,  34  Sup.  Ct.  229,  aff'g.  13  v.  Schmidt,  226  U.  S.  162,  57  L. 
Ariz,  170,  1  N.  C.  C.  A.  362,  112  Ed.  170,  33  Sup.  Ct.  68;  Schlem- 
Pac.  845.  mer   v.   Buffalo,   R.   &   P.   R.    Co., 

17.  Seaboard  Air  Line  Ry.  v.  220  U.  S.  590,  55  L.  Ed.  596,  31 
Lorick,  243  U.  S.  572;  61  L.  Ed.  Sup.  Ct.  561;  Hough  v.  Texas 
— ,  37  Sup.  Ct.  440;  Texas  &  P.  R.  &  P.  R.  Co.,  100  U.  S.  213,  25  L. 
Co.   V.   Harvey,  228  U.  S.  319,   57       Ed.   612. 


§  560]  Assumption    of   Eisk.  993 

rily  prudent  person,  under  similar  circumstances,  would 
rely  upon  such  a  promise.  For,  when  a  servant  shows 
that  he  relied  upon  a  promise  made  to  him  to  remedy 
the  defect,  he  negatives  the  infci-ence  of  willingness  to 
incur  the  risk.  Thus,  on  a  second  writ  of  error  to  the 
United  States  Supreme  Court  in  the  case  of  Seaboard 
AirTjineRy.  v.  Korton,^*  a  verdict  and  judgment  for  tlie 
plaintiff  was  atlirmed,  as  it  appeared  in  evidence  on 
the  second  trial  that  the  employer  had  assured  the 
plaintiff  that  the  defect  would  be  remedied. 

§  560.  When  Assumption  of  Risk  is  a  Defense  to 
Negligent  Acts  of  Fellow  Servants.  While  the  federal 
statute  abrogates  the  common-law  fellow-serA'ant  doc- 
trine by  i)lacing  the  negligence  of  a  co-employe  upon  the 
same  basis  as  the  negligence  of  the  employer,^'-'  yet,  in 
saving  the  defense  of  assumption  of  risk  in  cases  other 
than  those  where  the  violation  by  the  carrier  of  federal 
statute  enacted  for  the  safety  of  employes  may  con- 
tribute to  the  injury  or  death,  the  act  places  a  co-em- 
ploye's negligence,  when  it  is  the  ground  of  the  action, 
in  the  same  relation  as  the  employer's  own  negligence 
upon  the  question  whether  an  employe  is  deemed  to 
have  assumed  the  risk.^°  The  decision  of  the  national 
court  in  the  DeAtley  case,  in  effect,  overrules  many 
decisions  of  the  state  and  intermediary  federal  courts 
holding  that  an  employe  under  the  federal  act  never, 
under  any  circumstances,  assumes  the  risk  of  injun* 
from  the  negligence  of  a  co-employe.-^     Under  the  fed- 

18.  239  U.  S.  595,  60  L.  Ed.  458,  Kansas.  Hackney  v.  Missouri, 
36  Sup.  Ct.  180.  K.   &  T.  R.  Co.,   96   Kan.   30,   149 

19.  Section  428,  supra.  Pac.  421. 

20.  Chesapeake  &  O.  R.  Co.  v.  Mississippi.  Elliott  v.  Illinois 
De  Atley,  241  U.  S.  310,  60  L.  Cent.  R.  Co.,  Ill  Miss.  426,  71 
Ed.  1016,  36  Sup.  Ct.  504.  So.  741. 

"21.      United     States.      Northern  New    Hampshire.      Caverhill    v. 

Pac.  R.   Co.  V.  Maerkl,   117   C.   C.  Boston  &  M.  R.  R..  77  N.  H.  330, 

A.  237,  198  Fed.  1.  91  Atl.  917. 

Alabama.      Louisville   &    N.    R.  New  Jersey.    Grybowski  v.  Erie 

Co.    V.    Fleming,    194    Ala.    51,    69  R.    Co.,    88    N.    J.    L.    1,    95    Atl. 

So.    125.  764. 

1    Control   Can-iors   03 


994- 


Injuries   to   Inteestate   Employes. 


[§  560 


eral  act,  an  employe  has  the  right  to  presume  that  the 
employer  has  exercised  reasonable  care  for  his  safety, 
and  this  presmnption  applies  to  the  acts  of  a  fellow  serv- 
ant. He  does  not  ordinarily  assume  the  negligent  act 
of  a  fellow  servant;  but  if  he  becomes  aware  of  the 
risk  and  danger  arising  therefrom  and  continues  in  the 
employment,  or  if  the  risk  and  danger  arising  therefrom 
are  so  obvious  that  an  ordinarily  prudent  person  under 
the  same  circumstances  would  have  observed  the  one 
and  appreciated  the  other,  then  an  employe  assumes  the 
risk  aiising  from  the  negligent  act  of  a  co-employe  un- 
der the  national  statute.-"  "The  act  of  Congress,  by 
gated  the  common-law  rule  known  as  the  fellow-servant 
doctrine  by  placing  the  negligence  of  a  co-employee  up- 
on the  same  basis  as  the  negligence  of  the  employer. 
At  the  same  time,  in  saving  the  defense  of  assumption 
of  risk  in  cases  other  than  those  where  the  violation  by 
the  carrier  of  a  statute  enacted  for  the  safety  of  em- 


South  Carolina.  Thornton  v. 
Seaboard  Air  Line,  Ry.  98  S.  C. 
348,   82   S.  E.   433. 

Texas.     Missouri,   K.   &   T.    Ry. 

Co.    of    Texas    v.    Freeman,    

Tex.    Civ.    App.    ,    168    S.    W. 

69. 

West  Virginia.  Easter  v.  Vir- 
ginian R.  Co  ,  76  W.  Va.  383,  11 
N.    C.   C.   A.   101,   86   S.   E.    37. 

Wisconsin.  Sweet  v.  Chicago  & 
N.  W.  R.  Co.,  157  Wis.  400,  147 
N.  W.  1054. 

22.  Chicago  &  N.  W.  R.  Co.  v. 
Bower,  241  U.  S.  470,  60  L.  Ed. 
1107,  36  Sup.  Ct.  624;  Southern  R. 
Co.  V.  Gray,  241  U.  S.  333,  60  L. 
Ed.  1030,  36  Sup.  Ct.  558;  Louis- 
ville &  N.  R.  Co.  V.  Stewart,  241 
U.  S.  261,  60  L.  Ed.  989,  36  Sup. 
Ct.  586;  Seaboard  Air  Line  Ry. 
V.  Horton,  239  U.  S.  595,  60  L. 
Ed.  458,  36  Sup.  Ct.  180;  Yazoo  & 
M.  V.  R.  Co.  V.  Wright,  235  U. 
S.  376,  59  L.  Ed.  277,  35  Sup.  Ct. 
130;    Seaboard  Air  Line  R.  Co    v. 


Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,   34   Sup.  Ct.   635,   8  N.  C.  C. 

A.  834,  L.  R.  A.  1915C  1,  Ann. 
Cas.  1915B  475;  Gila  Valley  G. 
&  N.  R.  Co.  V.  Hall,  232  U.  S. 
94,  58  L.  Ed.  521,  34  Sup.  Ct.  229, 
aff'd  13  Ariz.  170,  1  N.  C.  C.  A. 
362,  112  Pac.  845;  Cross  v.  Chicago 

B.  &  Q.  R.  Co.  (Mo.  App.),  186 
S.    W.    1130;    Castonia   v.    Maine 

Cent.  R.  Co.,  N.  H.  ,  100 

Atl.  601. 

An  employe  does  not  assume 
the  negligence  of  a  fellow  servant 
under  the  federal  act  unless  it  be 
made  to  appear  first,  thatj  the 
negligence  was  either  in  fact 
known  to  the  plaintiff,  or  was  so 
customary  that  he  must  be 
charged  with  knowledge,  and, 
second,  that  he  must  appreciate, 
or  be  bound  to  appreciate,  the 
danger.  Michigan  Cent.  R.  Co.  v. 
Schaffer,  136  C.  C.  A.  413,  220 
Fed.  809. 


<§  500]  Assumption    of   Risk,  005 

ployees  may  contribute  to  the  injuiy  or  deatli  of  an  em- 
ployeo  (Soa])oar(l  Aii-  T/ine  v.  IToi-ton,  233  U.  S.  492,  502) 
making  tlio  canici-  lia])le  for  an  oniployee's  injury  're- 
sulting in  whole  or  in  ])art  from  the  negligence  of  any  of 
the  officers,  agents  or  em])loyes'  of  the  carrier,  abro- 
the  Act  placed  a  co-employee's  negligence,  where  it  is 
the  ground  of  the  action,  in  the  same  relation  as  the 
employer's  own  negligence  would  stand  to  the  question 
whether  a  plaintiff  is  to  be  deemed  to  have  assumed  the 
risk.  On  the  facts  of  the  case  before  us,  therefore,  plain- 
tiff having  voluntarily  entered  into  an  employment  that 
required  him  on  proper  occasion  to  board  a  moving 
train,  he  assumed  the  risk  of  injury  normally  incident 
to  that  operation,  other  than  such  as  might  arise  from 
the  failure  of  the  locomotive  eng-ineer  to  o])erate  the 
train  with  due  care  to  maintain  a  moderate  rate  of  speed 
in  order  to  enable  plaintiff  to  board  it  without  undue  peril 
to  himself.  But  plaintiff  had  the  right  to  presume  that 
the  engineer  would  exercise  reasonable  care  for  his 
safety,  and  cannot  be  held  to  have  assumed  the  risk 
attributable  to  the  operation  of  the  train  at  an  un- 
unusally  high  and  dangerous  rate  of  speed,  until  made 
aware  of  the  danger,  unless  the  speed  and  the  conse- 
quent danger  were  so  obvious  that  an  ordinarily  care- 
ful person  in  his  situation  would  have  observed  the  one 
and  appreciated  the  other.  *  *  *  It  is  insisted 
that  the  true  test  is,  not  whether  the  employee  did,  in 
fact,  know  the  speed  of  the  train  and  appreciate  the 
danger,  but  whether  he  ought  to  have  known  and  com- 
prehended; wliether,  in  effect,  he  ought  to  have  antic- 
ipated and  taken  precautions  to  discover  the  danger. 
This  is  inconsistent  with  the  rule  repeatedly  laid  down 
and  uniformly  adhered  to  by  this  court.  According  to 
our  decisions,  the  settled  rule  is,  not  that  it  is  the  duty 
of  an  employee  to  exercise  care  to  discover  extraor- 
dinaiy  dangers  that  may  arise  from  the  negligence  of 
the  employer  or  of  those  for  whose  conduct  the  employer 
is  responsible,  but  that  the  employee  may  assume  that 
the  employer  or  his  agents  have  exercised  proper  care 
with  respect  to  his  safety  until  notified  to  the  contrary, 


996  Injuries  to  Interstate  Employes.        [§  560 

unless  the  want  of  care  and  the  danger  arising  from  it 
are  so  obvious  that  an  ordinarily  careful  person,  under 
the  circumstances,  would  observe  and  appreciate 
them."'' 

§  561.  Analysis  of  Federal  Decisions  Applying 
Doctrine  of  Assumption  of  Risk  to  Interstate  Employes 
of  Railroads.  In  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  v. 
Thom]ison,-*  wherein  the  court  under  the  facts  held  that 
a  brakeman  alighting  from  a  moving  train,  did  not,  as 
a  matter  of  law,  assume  the  risk  of  stepping  upon  a  piece 
of  slag  near  the  track.  Judge  Cochran,  in  an  exhaustive 
opinion,  clearly  and  accurately  discussed  the  doctrine  of 
assumption  of  risk  as  applied  in  the  decisions  of  the 
United  States  Supreme  Court  to  interstate  employes  of 
railroads.  He  said:  "There  are  several  propositions  in 
this  connection  as  to  which  there  ought  to  be  no  con- 
troversy. Some  of  them  favor  plaintiff,  and  some 
defendant.  It  will  help  if  we  first  dispose  of  them  so 
that  the  single  question  on  which  the  case  hangs  may 
be  seen  in  all  its  nakedness.  Those  that  favor  de- 
fendant are  these:  It  is  trite  that  two  things  are 
essential  to  make  out  the  defense,  to  wit,  knowledge  of 
the  defective  condition  out  of  which  the  risk  arose,  and 
appreciation  of  the  risk  arising  therefrom.  These  two, 
indeed,  may  be  reduced  to  one,  i.  e.,  knowledge  of  such 
condition  and  of  such  risk.  In  the  case  of  Chicago  & 
E.  R.  Co.  v.  Ponn,  191  Fed.  682,  112  C.  C.  A.  228, 
Judge  Hollister  said  that  the  word  appreciated  'does 
not  mean  more  than  actual  knowledge.  It  does  not 
mean  less.'  Here,  there  can  be  no  question  that  plain- 
tiff appreciated,  i.e.,  knew,  the  risk.  The  quotation 
heretofore  made  from  his  testimony  contains  an  express 
admission  that  he  did.  The  only  possible  question  is 
whether  he  knew  the  conditions  out  of  which  the  risk 
arose.    Again,  it  is  not  essential  that  plaintiff  knew  that 

23.  Mr.  Justice  Pitney  in  Chesa-  24.     Cincinnati,   N.   O.   &  T.  P. 

peake    &   0.   R.    Co.   v.    De   Atley,  R.  Co.  v.  Thompson,  149  C.  C.  A. 

241  U.  S.  310,  60  L.  Ed.  1016,  36  211,   236   Fed.    1. 
Sup.  Ct.  564. 


§  5G1]  Assumption    of   Risk.  997 

the  particular  piece  of  slaic,  stepjjin^  on  which  caused 
his  injury,  was  there.  It  is  sufficient  if  he  knew  that 
sucli  s]a,ii",  i.  e.,  slag  of  that  character  or  slag  sub- 
stantially as  large  and  as  dangerous  as  that  piece,  were 
lying  loose  in  and  about  the  place  where  he  alighted. 
And  again,  his  denial  of  such  knowledge  is  not  merely 
not  conclusive  of  the  question.  It  may  be  of  no  value 
whatever  in  determining  it.  Notwithstanding  such 
denial,  it  may  be  that  it  should  be  taken  that  he  did  in 
fact  have  such  knowledge.  In  the  case  of  Chesapeake 
&  Ohio  Ry.  Co.  v.  Proffitt,  241  U.  S.  462,  36  Sup.  Ct.  620, 
60  L.  Ed.  1102,  Mr.  Justice  Pitney  said  that  the  employe 
was  'not  to  be  treated  as  assuming  a  risk  that  is  at- 
tributal)le  to  the  employer's  negligence  until  he  becomes 
aware  of  it,  or  it  is  so  plainly  observable  that  he  must 
be  presumed  to  have  known  of  it.'  Language  to  the 
same  effect  may  be  found  in  numerous  decisions  of  the 
Supreme  Court.  Washington  &  G.  R.  R.  Co.  v.  McDade, 
135  U.  S.  554,  573,  10  Sup.  Ct.  1044,  34  L.  Ed.  235; 
Choctaw,  0.  &  G.  R.  R.  Co.  v.  McDade,  191  U.  S.  64,  68, 
24  Sup.  Ct.  24,  48  L.  Ed.  96;  Butler  v.  Frazee,  211  U.  S. 
459,  467,  29  Sup.  Ct.  136,  53  L.  Ed.  281;  Schlemmer  v. 
Buffalo  R.  &  P.  Co.,  220  U.  S.  590,  596,  31  Sup.  Ct.  561, 
55  L.  Ed.  596;  Texas  &  Pacific  R.  R.  Co.  v.  Harvey,  228 
U.  S.  319,  321,  322,  33  Sup.  Ct.  518,  57  L.  Ed.  852 ;  Gila 
Valley,  G.  &  N.  R.  Co.  v.  Hall,  232  U.  S.  94,  102,  34  Sup. 
Ct.  229,  58  L.  Ed.  521;  Seaboard  Air  Line  R.  R.  Co.  v 
Horton,  233  U.  S.  492,  504,  34  Sup.  Ct.  635,  58  L.  Ed.  1062 
L.  R.  A.  1915C,  1  Ann.  Cas.  1915  B,  475.  The  presumption 
here  referred  to,  I  take  it,  is  conclusive.  It  cannot  be 
overthrown  or  affected  to  any  extent  by  a  mere  denial 
on  the  part  of  the  employe.  In  Butler  v.  Frazee,  supra, 
a  peremptory  instruction  was  upheld  in  face  of  a  denial 
by  the  plaintiff,  whose  hand  had  been  injured,  whilst 
feeding  a  mangle  in  a  steam  laundry.  The  denial  there, 
however,  was  of  appreciation  and  not  of  knowledge  of 
the  condition  out  of  which  the  risk  arose;  but,  if  such  a 
denial  was  of  no  avail,  a  denial  of  such  knowledge 
could  not  have  been  of  any  more  value.  j\Ir.  Justice 
Moody  said:     'The  contention,  however,  is  that,  as  the 


998  Injueiks   to   Interstate   Employes.        [^  561. 

]^laintiff  testified  in  substance  that  she  did  not  know 
and  appreciate  the  dang-er  which  she  was  encountering, 
tliat  testimony,  with  the  other  facts  in  the  case,  raised 
an  issue  for  the  jury,  and  tliat  it  could  not  be  said,  as 
a  matter  of  law,  that  the  risk  had  been  assumed.  This 
contention  is  sustained  by  a  well-considered  case. 
Stager  v.  Troy  Laundry  Co.,  38  Or.  480  (63  Pac.  645. 
53  L.  R.  A.  459).'  To  this  contention  he  responded: 
'But  where  the  conditions  are  constant  and  of  long 
standing,  and  the  danger  is  one  that  is  suggested  by  the 
common  knowledge  which  all  possess,  and  both  the  con- 
ditions and  the  dangers  are  obvious  to  the  common 
understanding,  and  the  employe  is  of  full  age,  in- 
intelligence,  and  adequate  experience,  in  all  these 
elements  of  the  problem  appear  without  contradiction 
from  the  plaintitf 's  own  evidence,  the  question  becomes 
one  of  law  for  the  decision  of  the  court.'  The  recent 
case  of  Jacobs  v.  Southern  R.  Co.,  241  U.  S.  229,  36  Sup. 
Ct.  588,  60  L.  Ed.  970,  which  in  some  of  its  features  is 
more  like  the  one  in  hand  than  any  other  in  the  Su- 
preme Court,  also  involved  a  denial  of  appreciation,  i.e., 
knowledge  of  the  risk.  There  the  question  of  the 
assumption  of  risk  was  left  to  the  jury,  which  found 
in  defendant's  favor.  Seemingly,  it  was  urged  that 
because  of  this  denial  that  question  should  not  have 
been  left  to  the  jury.  Scant  consideration,  however, 
was  given  to  the  denial,  Mr.  Justice  McKenna  said: 
'He  {'i.e.,  the  fireman  who  was  injured  whilst  attempting 
to  mount  his  engine  when  in  motion  from  a  cinder  pile) 
admitted  a  knowledge  of  the  'material  conditions,'  and 
it  would  be  going  very  far  to  say  that  a  fireman  of  an 
engine  who  knew  of  the  custom  of  depositing  cinders 
between  the  tracks,  knew  of  their  existence,  and  who 
attemped  to  mount  an  engine  with  a  vessel  of  water  in 
his  hands  hokling  'not  over  a  gallon,'  could  be  con- 
sidered as  not  having  appreciated  the  danger  and 
assumed  the  risk  of  the  situation  because  he  had  for- 
gotten their  existence  at  the  time  and  did  not  notice 
them.'  That  this  presumption  is  so  strong  indicates 
how  'rigorous  and  vigorous'  must  be  the  circumstances 


§  561]  Assumption    of   Risk.  999 

wliic'li  give  rit^e  to  it.  'V\\('\  may  Ijo  thus  i)nt:  The 
defective  condition  and  the  risk  must  liave  been  so 
obvious  and  tlie  employe's  relation  thereto  must  have 
})een  so  close  and  intimate  that  he  could  not  help  but 
have  known  of  them.  This  makes  a  denial  by  him  of 
knowlediJ::e  thereof  in  effect  a  denial  of  a  physical  fact. 
The  case  of  Butler  V.  Frazee,  supra,  is  an  apt  illustration 
of  the  circumstances  under  which  the  presumption 
arises.  The  defect  in  the  mangle  complained  of  con- 
sisted in  the  excessive  height  of  the  finger  guard  rail 
above  the  feed  board.  This  was  obvious  to  any  one 
looking  at  it.  The  plaintiff's  relation  to  tlie  defective 
condition  and  the  risk  was  as  close  and  intimate  as  it 
could  be.  As  she  fed  the  mangle,  it  was  right  in  front 
of  her,  and  she  had  worked  at  it  for  some  months  before 
she  was  injured.  This,  of  course,  was  a  strong  case  for 
the  presumption  to  arise.  It  was  so  strong  that  plaintiff 
did  not  deny  that  she  knew  of  tlie  defective  condition. 
Conceivably  cases  may  exist  not  so  strong  as  this  and 
yet  strong  enough  to  give  rise  to  the  presumption.  But 
in  one  and  all,  in  order  thereto,  the  defective  condition 
and  the  risk  must  hi\\e  been  so  obvious  and  the  em- 
ploye's relation  thereto  must  liave  been  so  close  and 
intimate  that  lie  could  not  help  but  have  known  of  them. 
It  must  be  taken,  therefore,  that  plaintiff's  denial  of 
knowledge  of  the  j^resence  of  slag  such  as  that  upon 
which  he  stepped  was  not  only  not  conclusive  as  to  his 
state  of  knowledge,  but  it  may  not  have  been  sufficient 
to  make  the  question  in  regard  thereto  one  for  the  jury 
to  determine.  The  circumstances  may  be  so  coercive 
that  it  must  be  conclusively  presumed  that  he  had 
knowledge  thereof.  The  propositions  referred  to  favor- 
ing ])laintiff  are  two.  Knowledge  on  his  part  of  the 
conditions  out  of  which  the  risk  which  he  incurred  arose 
cannot  be  presumed  from  the  fact  that  an  ordinarily 
prudent  ])erson  in  like  business,  under  like  circum- 
stances, would  have  ascertained  that  condition  either 
just  before  he  jumped  or  theretofore.  This  fact  made 
out  a  case  of  contributory  negligence,  not  one  of  as- 
sumption of  risk.    That  the  two  defenses  are  distinct  is 


1000  IxjuRTF-s  TO  Interstate  Employes.        [§  561 

nowhere  better  settled  than  by  the  decisions  of  the 
Supreme  Court  of  the  United  States.  The  matter  is 
dealt  with  the  following  cases:  Choctaw,  0.  &  G. 
R.  Co.  V.  McDade,  supra,  191  U.  S.  68,  24  Sup.  Ct.  24, 
48  L.  Ed.  96;  Schlemmer  v.  Buffalo  R.  P.  Co.,  supra, 
220  U.  S.  596,  31  Sup.  Ct.  561,  55  L.  Ed.  596;  Seaboard 
A.  L.  R.  R.  Co.  V.  Horton,  supra,  223  U.  S.  503,  504, 
34  Sup.  Ct.  635,  58  L.  Ed.  1062,  L.  R.  A.  1915C,  1, 
Ann.  Cas.  1915B,  475;  Yazoo  &  M.  V.  R.  R.  Co.  v. 
Wrig-ht,  235  U.  S.  379,  35  Sup.  Ct.  130,  59  L.  Ed.  277. 
In  the  Schlemmer  Case,  Mr.  Justice  Day  said  that  the 
distinction  between  the  two  defenses  was  'practical  and 
clear,'  and,  in  the  Horton  Case,  Mr.  Justice  Pitney  said 
that  it  was  'simple.'  This  court,  speaking  through 
Judge  Hollister,  in  the  Ponn  Case,  191  Fed.  687,  112 
C.  C.  A.  228,  said  that  they  were  'entirely  distinct.' 
The  distinction  was  again  noted  by  it  in  Sterling  Paper 
Co.  V.  Hamel,  207  Fed.  300,  304,  125  C.  C.  A.  44,  and 
Yazoo  R.  Co.  v.  Wright,  207  Fed.  281,  285,  125,  C.  C.  A. 
25.  In  the  case  of  McMyler  Mfg.  Co.  v.  Mehnke,  209 
Fed.  5,  126  C.  C.  A.  147,  through  Judge  Denison,  it  said : 
'When  each,  alike,  constituted  a  complete  defense,  the 
distinction  was  largely  academic,  and  it  was  natural 
that  the  terms  should  be  used  with  some  confusion; 
but,  now  that  statutes  have  made  differences  in  the 
defensive  value  of  the  two  things,  the  distinction  has 
become  vital  and  has  been  the  subject  of  much  judicial 
inquiry.'  He  dealt  therein  with  what  he  tenned  the 
'seeming  conflict'  between  the  statement  of  Mr.  Justice 
Holmes  in  the  first  Schlemmer  Case,  205  U.  S.  1,  27 
Sup.  Ct.  407,  51  L.  Ed.  681,  that  assumption  of  risk 
'obviously  shades  into  negligence  as  commonly  under- 
stood,' and  that  'the  difference  between  the  two  is  one 
of  degree  rather  than  of  kind,'  and  that  of  Mr.  Justice 
Day  in  the  second  one  that  'there  is,  nevertheless,  a 
practical  and  clear  distinction  between  the  two.'  Knowl- 
edge of  the  risk  is  the  watchword  of  the  defense  of 
assumption  of  risk;  want  of  due  care  in  view  thereof  is 
that  of  contributory  negligence;  and  these  are  distinct 
conceptions.     Conceivably,  at  least,  it  is  fjossible  for  an 


^  5C1]  Assumption    of   Kisk.  lOUl 

employe  to  lia\e  knowledge  of  a  certain  risk,  when  lie 
enters  the  emi)h)yment,  and  at  the  same  time  to  exhibit 
a  want  of  due  care  in  entering  it  in  view  thereof.  But 
it  would  seem  that  the  decisions  in  the  Schlemmer  and 
Mehnke  Cases  are  against  treating  such  conduct  as 
making  out  the  defense  of  assumption  of  risk  and  not 
that  of  contributory  negligence.  It  is  only  in  case  the 
employe,  thereafter,  in  view  of  his  knowledge  of  the 
risk,  exhibits  a  want  of  due  care  in  his  behavior  in  re- 
lation thereto,  that  ho  has  been  guilty  of  such  con- 
tributory negligence  as  to  defeat  the  right  of  action.  In 
such  a  case,  assumption  of  risk  and  contributory  negli- 
gence, but  for  a  statute  abolishing  the  one  or  limiting 
the  effect  of  the  other,  coexist,  each  as  a  complete  de- 
fense to  the  action.  They  need  not,  however,  coexist. 
In  the  absence  of  statute,  conceivably  at  least,  there  may 
be  assumption  of  risk  without  contributory  negligence. 
This  is  so,  in  case,  at  the  time  the  employe  enters  the 
employment,  he  knows  of  the  risk,  and  with  such  knowl- 
edge a  prudent  person  would  encounter  the  risk  of 
entering  the  employment.  So  there  may  be  contributory 
negligence  without  assumption  of  risk.  This  is  the  case 
wliere  the  employe  in  the  course  of  his  employment, 
with  no  previous  knowledge  of  the  risk,  is  suddenly 
confronted  therewith  and  has  no  freedom  of  choice 
between  quitting  and  continuing  in  the  service,  but  fails 
to  exercise  due  care  in  view  of  the  risk  with  which  he 
is  thus  confronted.  So  if  a  prudent  person,  under  the 
circumstances  of  the  particular  case,  would  have  dis- 
covered the  existence  of  the  risk  and  acted  accordingly, 
a  case  of  contributory  negligence  would  be  made  out, 
but  not  assumption  of  risk.  This  is  so  because  knowl- 
edge of  the  risk  is  essential  to  the  defense  and  this 
does  not  exist.  All  that  exists  is  that  the  employe 
ought  to  have  known.  In  the  case  of  Texas  &  Pacific 
R.  K.  Co.  v.  Arcliibald,  170  U.  S.  665,  18  Sup.  Ct.  777,  42 
L.  Ed.  1188,  a  switchman  was  injured  whilst  attempting 
to  uncouple  Iavo  cars  delivered  to  defendant  by  another 
railroad  company  to  be  locally  handled  and  then  return- 
ed, by  reason  of  the  coupling  apparatus  being  defective. 


1002  Injuries   to   Interstate   Employes.         [-^  5()1 

The  court  held  that  defendant  owed  plaintiff  the  duty 
of  exercising  due  care  to  furnish  him  reasonably  safe 
appliances  in  the  way  of  coupling  apparatus  as  to  for- 
eign cars  delivered  to  it  to  be  locally  handled  the  same 
as  in  case  they  were  delivered  to  be  handled  over  its 
road.  The  defendant  requested  an  instruction  to  the 
effect  that,  if  plaintiff  knew  or  by  the  exercise  of  ordi- 
nary care  could  have  known  tlmt  it  was  the  custom  of 
the  defendant  company  not  to  inspect  such  cars,  he  as- 
sumed the  risk  of  being  injured  by  reason  of  the  defects 
in  such  cars.  The  court  struck  out  the  words  'or  by  the 
exercise  of  ordinary  care  could  have  knowm'  and  gave 
the  instruction  thus  altered.  The  action  in  so  striking 
was  approved.  In  the  case  of  Choctaw,  0.  &  G.  R.  Co.  v. 
McDade,  supra,  the  jury  were  instructed  that  if  the  de- 
ceased employe  either  knew  of  the  danger  of  collision 
with  the  water  spout,  or,  by  the  observance  of  ordinary 
care  upon  his  part,  ought  to  have  known  of  it,  no  re- 
covery could  be  had.  Mr.  Justice  Day,  as  to  this  portion 
of  the  charge,  said:  'The  charge  of  the  court  upon  the 
assumption  of  risk  was  more  favorable  to  the  plaintiff  in 
error  than  the  law  required,  as  it  exonerated  the  rail- 
road company  from  fault  if,  in  the  exercise  of  ordinary 
care,  McDade  might  have  discovered  the  danger.  Upon 
this  question  the  true  test  is  not  in  the  exercise  of  care 
to  discover  dangers,  but  whether  the  defect  is  known 
or  plainly  observable  by  the  employe.'  The  other  propo- 
sition favoring  plaintiff  is  that  it  does  not  follow  from 
the  fact  that  the  plaintiff  knew  that  pieces  of  slag  of  the 
size  of  a  hen's  egg  and  smaller  were  between  the  tracks 
in  the  yard  at  Oneida  north  of  the  road  crossing  and 
that  it  was  dangerous  for  him  to  step  on  one  of  them  in 
alighting  from  the  train  as  he  did,  so  that  if  he  had  been 
injured  by  stepping  on  such  a  piece  he  could  not  have 
recovered  because  he  had  assumed  such  risk,  that  he  had 
assumed  the  risk  of  stepping  on  a  loose  piece  of  the 
character  of  that  on  which  he  did  stei).  It  seems  to  have 
been  the  thought  of  that  portion  of  the  charge  to  the 
jury  as  to  what  was  essential  to  make  out  the  defense  of 
assumption  of  risk  heretofore  quoted  that  it  did  so  fol- 


§  561]  Assumption    of   Risk.  1003 

low.  Tossibly  there  is  no  room  to  elaiiii  tliat  a  piece  tlie 
size  of  a  man's  two  fists  or  of  a  cocoanut  is  not  sub- 
stantially larger  and  moi-e  dan.i^'erous  to  step  on  under 
such  circumstances  than  one  only  as  larg-e  as  a  hen's 
egg.  At  least,  it  cannot,  as  a  matter  of  law,  be  said  that 
such  is  not  the  case.  This  being  so,  we  must  take  it 
that  it  is  substantially  larger  and  more  dangerous.  And 
such  being  the  case,  it  is  not  to  be  said  that  an  employe 
who  assumes  a  particular  risk  assumes  a  substantially 
greater  one  ])ecause  it  is  exactly  of  the  same  kind,  and 
that,  even  though  such  particular  risk  is  an  'extra- 
ordinary' one,  in  that  it  arises  from  the  employer's  neg- 
ligence, as  is  the  case  with  the  substantially  greater  one. 
Conceivably  he  might  be  willing  to  incur  the  one  and 
not  the  other.  Such  fact  cannot  be  made  the  basis  of 
charging  plaintiff  with  having  assumed  such  risk  on  the 
ground  that  it  was  inferable  from  the  presence  of  the 
smaller  pieces  that  there  might  be  larger  ones  or  even 
that  it  was  prol)able  or  likely  there  would  be.  The 
knowlege  of  conditions  from  which  a  risk  arises  which 
the  doctrine  calls  for,  as  we  understand  it,  is  immediate 
knowledge  obtained  from  pure  observation.  It  does  not 
cover  conclusions  or  inferences  from  such  knowledge. 
Probably  it  would  be  safer  to  say  that  it  does  not  cover 
inferences  or  conclusions  therefrom  as  to  possible,  or 
probable  or  likely  conditions.  In  the  Ponn  Case,  191  Fed. 
688,  112  C.  C.  A.  228,  Judge  HoUister  said:  'The  only 
kind  of  knowledge  which,  on  the  ground  of  assumption 
of  risk,  will  bar  a  recovery  is  actual  knowledge.'  And 
in  the  Wright  and  Hamel  Cases,  207  Fed.  285, 125  C.  C. 
A.  25,  and  207  Fed.  304, 125  C.  C.  A.  44,  Judge  Warring-ton 
characterized  the  assumption  called  for  by  the  defense 
of  assumption  of  risk  as  a  'conscious  assumption;'  and 
in  order  to  l)e  conscious  assumption  there  must  be  actual 
knowledge.  In  the  case  of  Chesapeake  &  Ohio  Ry.  Co. 
v.  Deatley,  241  U.  S.  310,  36  Sup.  Ct.  564,  60  L.  Ed.  1016, 
the  plaintilT,  a  head  brakeman,  had  been  injured  whilst 
attempting  to  mount,  at  the  engine,  a  freight  train  in 
motion.  By  direction  of  the  engineer  he  had  dismounted 
at  a  coal  dock,  at  which  the  train  had  stopped,  and  gone 


1004  IxjuRiEs  TO   Interstate  Employes.        [^  561 

forward  to  a.  signal  tower  a  short  distance  ahead,  for 
information.  The  attempt  to  mount  was  from  the  plat- 
form of  the  tower  as  the  engine  passed  him.  His  em- 
ployment required  him  to  mount  a  moving  train  on  proper 
occasions,  and  he  had  frequently  mounted  his  train, 
whilst  in  motion,  on  such  an  occasion  as  this  one.  The 
mounting  could  be  made  with  reasonable  safety  if  the 
train  was  running  at  a  moderate  rate  of  speed.  There 
was  some  risk  in  so  mounting,  but  it  was  one  of  the  or- 
dinary risks  of  the  emplojanent,  in  that  it  did  not  arise 
from  negligence  of  the  defendant  or  its  engineer.  And 
this  risk  the  plaintiif  had  assumed.  The  train  in  ques- 
tion was  running  at  the  rate  of  12  miles  an  hour,  and  the 
claim  was  that  this  was  an  unusually  dangerous  rate  of 
speed  at  which  to  mount  the  train,  and  that  therefore 
the  engineer  was  negligent  in  running  it  at  that  rate, 
which  made  the  risk  of  mounting  the  train  whilst  it  was 
so  running  an  extraordinary  risk.  The  principal  ques- 
tion in  the  case  was,  accepting  this  to  be  true:  Did  the 
plaintiff  assume  the  risk  of  such  negligence  on  the  part 
of  the  engineer?  Possibly  the  case  did  not  involve  the 
doctrine  of  assumption  of  risk  at  all,  in  that  plaintiff, 
when  suddenly  confronted  with  the  increased  risk,  had 
no  such  freedom  of  choice,  as  to  whether  he  would  con- 
tinue in  or  leave  defendant's  service,  as  is  essential  to 
call  for  the  application  of  the  doctrine,  and  therefore  in- 
volved only  the  question  of  contributory  negligence.  But 
the  case  was  disposed  of  on  the  basis  that  it  did,  and  it 
was  held  that  plaintiff  did  not,  as  a  matter  of  law, 
assume  such  risk.  It  was  so  held  because,  the  plaintiff' 
not  having  admitted  that  he  knew  and  appreciated  the 
increased  risk,  it  could  not,  as  a  matter  of  law,  be  said 
that  he  did;  and  this  though  there  was  no  denial  on 
his  part  that  he  did.  The  extraordinary  risk  which 
plaintiff  thus  encountered  was  exactly  the  same  kind  as 
the  ordinary  one  which  he  had  assumed.  It  was  mere- 
ly greater  in  degree.  It  was  a  risk  which  the  engineer 
might  easily  create,  and  it  was  to  be  inferred  that  it 
was  possible  or  even  probable  or  likely  that  plaintiff 
would  have  to  encounter  it.    This,  however,  was  without 


§  561]  Assumption    of   Risk.  1005 

effect.     Mr.  Justice  Pitney  stated  defendant's  position 
tlms:     'It  is  insisted  tliat  tlie  true  test  is,  not  whether 
the  employe  did,  in  fact,  know  the  speed  of  the  train 
and  appreciated  the  dang-er,  hut  whetlier  he  ought  to 
have  known  and  comprehended;  whether,  in  effect,  he 
ought  to  have  anticipated  and  taken  precautions  to  dis- 
cover tlie  danger.'     To  tliis  he  responded:  'This  is  in- 
consistent with  the  rule  repeatedly  laid  down  and  uni- 
formly  adhered   to   by   this  court.     According   to   our 
decisions,  the  settled  rule  is,  not  that  it  is  the  duty  of 
an  employe  to  exercise  care  to  discover  extraordinary 
dangers   that   may   arise    from    the   negligence    of    the 
employer  or  of  those  for  whose  conduct  the  employer  is 
responsible,  but  that  the  employe  may  assume  that  the 
employer  or  his  agents  have  exercised  proper  care  with 
respect  to  his  safety  until  notified  to  the  contrar}^  un- 
less the  want  of  care  and  the  danger  arising  from  it 
are    so    obvious    that    an    ordinarily    careful    person, 
under  the  circumstances,  would  observe  and  appreciate 
them.'    But  it  may  be  urged  that  the  smaller  risk,  to 
wit,  that  of  running  at  such  a'  moderate  rate  of  speed 
that  the  train  could  be  mounted  with  reasonable  safe- 
tv  and,  which  was  assumed,  was  an  ordinary  nsk,  m 
that  it  involved  no  negligence  and  the  plaintiff  had  the 
right  to  presume   that   he   would   be    subjected   to   no 
greater  risk  by  running  the   train  at  a  greater   rate, 
whereas  here  the  smaller  risk,  to  wit,  the  presence,  at 
the  alighting  place  of  pieces  of  slag  the  size  of  a  hen's 
egg  and  smaller,  was  in  itself  an  extraordinary  risk, 
in  that  it  involved  negligence.     They  were  dangerous 
to  step  on.     Brakemen  were  known  to  alight  at   that 
place  in  the  line  of  their  duties.    The  pieces  could  have 
been  removed  and  reasonably   should.     Thus  knowing 
that  defendant  was  negligent  to  this  extent,  plaintiff  not 
only  had  no  right  to   presume   that  it  had    not  been  also 
negligent  in  permitting  larger  and  more  dangerous  pieces 
to  "be  there,  but  reasonably  should  have  inferred  that  it 
might  have  or  probably  or  likely  had  been  and  if  he  was 
not  willing  to  incur  the  risk  should  have  quit  the  employ- 
ment.    In  the  case   of  Texas   &   Pacific  R.   R.   Co.  v. 


1006  IxjuEiES  TO  Interstate  Employes.        [<§  561 

Archibald,  supra,  though  the  only  question  directly 
involved  was  whether  the  words  as  to  ordinary  care 
were  properly  stricken  ont  of  the  instruction  requested 
by  the  defendant,  it  was  held  that  the  jury  sliould  not 
have  been  instructed  that,  if  plaintiff  knew  of  the  cus- 
tom not  to  inspect  and  repair  foreign  cars  handled 
locally,  he  had  assumed  the  risk  of  injury  by  the  de- 
fective coupling  apparatus  which  ho  encountered,  as 
it  was  in  the  instruction  in  its  altered  form.  It  was  neg- 
ligence on  defendant's  part  not  so  to  do,  and  it  was 
inferable  therefrom  that  the  coupling  apparatus  of 
cars  so  received  by  it  possibly  might,  even  probably  or 
likely  would  be,  defective,  and  yet  plaintiff  was  not  held 
to  have  assumed  the  risk  of  the  presence  of  such  de- 
fective apparatus  because  he  knew  of  such  negligence. 
A  conclusive  reason  why  the  employe  should  not  be 
chargeable  with  knowledge  of  defective  conditions  the 
possibility,  probability,  or  likelihood  of  the  existence 
of  which  is  inferable  from  known  conditions,  is  that  the 
only  basis  for  charging  him  with  such  knowledge  is 
that  an  ordinarily  prudent  employe  under  like  cir- 
cumstances would  draw  such  inference  and  act  ac- 
cordingly; and,  as  we  have  seen,  the  question  of  care  on 
the  employe's  part  has  nothing  whatever  to  do  with  the 
defense  of  assumption  of  risk.  It  has  solely  to  do  with 
that  of  contributory  negligence." 

§  562.  Distinction  Between  Assumption  of  Risk 
and  Contributory  Negligence.  The  distinction  between 
assumption  of  risk  and  contributory  negligence  under 
the  federal  act  is  important  for  the  reason  that,  except 
as  to  violations  of  federal  statutes  for  the  protection  of 
employes,  assumption  of  risk  is  an  absolute  defense  and 
contributory  negligence  only  reduces  the  damages.-'  As 
construed  by  the  United  States  Supreme  Court  an  em- 

25.     Alabama.     Southern  R.  Co.  Georgia.    Macon,  D.  &  S.  R.  Co. 

V.  Peters,  194  Ala.  94,  69  So.  611.  v.    Musgrove,    145    Ga.    C47,    89    S. 

Arkansas.     St.  Louis,  L  M.  &  S.  E.  767. 

R.   Co.  V.  Rodgers,  118  Ark.  263,  Indiana.     Pittsburgh,  C.  C.  &  St. 

176   S.   W.    696.  L.    R.    Co.    v.    Farmers'    Trust    & 


§  562] 


Assumption    of   Risk, 


1007 


ploye  assiunes  the  ordinary  risks  and  liazards  of  liis 
occupation  and  also  those  defects  and  nsks  which  are 
known  to  him,  or  are  plainly  observable,  although  duo 
to  the  master's  negligence.  Contributory  negligence,  on 
the  other  hand,  is  the  omission  of  the  em])loye  to  use 
those  precautions  for  his  own  safety  which  ordinary 
ju'udence    re(juires.-"     In   an    ad  ion    under   tlic   Federal 


Savings  Co.,  18.^  Ind.  287,  108  N. 
E.    108. 

Kansas.  Spinden  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  95  Kan.  474,  148 
Pac.  747. 

Virginia.  Chesapeake  &  0.  R. 
Co.  V.  Meadows,  119  Va.  33,  13 
N.  C.   C.  A.   376,   89  S.   E.   244. 

Washington.  Bolch  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  90  Wash.  47, 
155  Pac.  422. 

"In  considering  the  facts  in 
this  case  we  should  keep  in  mind 
the  distinction  between  the  con- 
sequences of  contributory  negli- 
gence and  assumption  of  risk.  Un- 
der the  federal  Employers'  Lia- 
bility Act  one  is  only  barred  from 
recovery  where  It  appears  that 
he  assumed  the  risk  incident  to 
his  employment.  On  the  other 
hand,  contributory  negligence  is 
not  a  bar  to  recovery,  and  can 
only  be  considered  in  ascertain- 
ing the  extent  to  which  damages 
are  to  be  mitigated."  Southern 
R.  Co.  V.  Mays,  152  C.  C.  A.  91. 
239  Fed.  41. 

The  doctrine  of  assumption  of 
risk  alw^ays  arises  on  contract, 
express  or  implied,  while  the  doc- 
trine of  contributory  negligence 
always  arises  in  tort.  St.  Louis 
Merchants'  Bridge  Terminal  R. 
Co.  V.  Schuerman,  150  C.  C.  A.  203, 
237   Fed.    1. 

"  'Assumed  risk'  and  'contribu- 
tory negligence'  are  sometimes 
loosely  treated  as  synonymous. 
This,  perhaps,  for  the  reason  that 


the  same  act  may  constitute  both 
assumed  risk  and  contributory 
negligence.  Railway  Co.  v.  Allen, 
48  Tex.  Civ.  App.  66,  106  S.  W. 
441.  But  there  is  a  well-recog- 
nized distinction  between  assum- 
ed risk  and  contributory  negli- 
gence. Contributory  negligence 
implies  fault  or  a  breach  of  duty 
on  the  part  of  the  injured  party, 
either  by  doing  or  by  failing  to  do 
something  that  a  reasonably  pru- 
dent man  would  not  have  done, 
or  would  not  have  failed  to  do, 
to  avoid  being  injured  under  the 
same  or  similar  circumstanjces. 
On  the  other  hand,  there  is  a  cer- 
tain amount  of  danger  incident 
to  many  employment,  which  or- 
dinary prudence  cannot  always 
avoid.  Where  these  are  known 
to  the  employe,  they  are  assumed 
by  him  as  an  implied  part  of  his 
contract  of  employment.  An  em- 
ploye assumes  the  risk  of  those 
dangers  known  to  him  to  be  ordi- 
narily incident  to  the  labor  which 
he  has  agreed  to  perform,  or 
which  are  so  obvious  that  a  man 
of  ordinary  intelligence  and  pru- 
dence must  necessarily  be  pre- 
sumed to  have  learned  of  them  in 
the  ordinary  course  of  his  employ- 
ment."    Gulf,  C.  &  S.  F.  R.  Co.  v. 

Cooper,  Tex.  Civ.  App.  , 

191   S.   W.   579. 

26.  Schlemmer  v.  Buffalo.  R. 
&  P.  R.  Co.,  220  U.  S.  590,  55  L. 
Ed.  596.  31  Sup.  Ct.  561. 


1008  Injuries  to  Interstate  Employes.        [^  562 

Employers'  Liability  Act,  the  federal  Supreme  Court 
described  the  distinction  in  the  following  language: 
"And,  taking  sections  3  and  4  together,  there  is  no 
doubt  that  Congress  recognized  the  distinction  between 
contributory  negligence  and  assumption  of  risk;  for, 
while  it  is  declared  that  neither  of  these  shall  avail  the 
earner  in  cases  where  the  violation  of  a  statute  has 
contributed  to  the  injury  or  death  of  the  employe,  there 
is,  with  respect  to  cases  not  in  this  category,  a  limita- 
tion upon  the  effect  that  is  to  be  given  to  contributory 
negligence,  while  no  corresponding  limitation  is  imposed 
upon  the  defense  of  assumption  of  risk — perhaps  none 
was  deemed  feasible.  The  distinction,  although  simple, 
is  sometimes  overlooked.  Contributory  negligence  in- 
volves the  notion  of  some  fault  or  breach  of  duty  on  the 
part  of  the  employes,  and  since  it  is  ordinarily  his  duty 
to  take  some  precaution  for  his  own  safety  when  en- 
gaged in  a  hazardous  occupation,  contributory  negli- 
gence is  sometimes  defined  as  a  failure  to  use  such  care 
for  his  safety  as  ordinarily  prudent  employes  in  similar 
circumstances  would  use.  On  the  other  hand,  the  as- 
sumption of  risk,  even  though  the  risk  be  obvious,  may 
be  free  from  any  suggestion  of  fault  or  negligence  on  the 
part  of  the  employes."-^  Applying  these  principles  in 
an  action  for  a  negligent  injury  to  a  section  man  struck  by 
an  engine,  an  instruction  that  if  the  plaintiff  could  with 
safety  and  reasonable  convenience,  have  stepped  off  the 
track  but  by  his  own  choice,  was  properly  refused  be- 
cause it  pertained  to  the  conduct  of  the  plaintiff  and 
what  he  should  have  done  to  protect  his  safety  consider- 
ing his  danger  at  the  time,  and  did  not  cover  the 
element  of  assumed  risk  but  was  more  properly  ap- 
])licab]f'  to  the  defense  of  contributory  negligence.^^ 

§  563.     When  Assumption  of  Risk  is  not  a  Defense 
— Federal  Safety  Appliance  Laws.     In  an  action  for  in- 

27.  Seaboard  Air  Line  R.  Co.  Ann.  Cas.  1915B  475. 

V.  Horton,  233  U.  S.  492,  58  L.  28.   Erie  R.  Co.  v.  Purucker, 

Ed.  1062,  34  Sup.  Ct.  635,  8  N.  244  U.  S.  320,  61  L.  Ed.  1166,  37 

C.  C.  A.  834,  L.  R.  A.  1915C  1,  Sup.  Ct.  629. 


§  503] 


Assumption    of   Risk. 


1009 


juries  based  upon  a  violation  ])y  a  railroad  company  of 
any  federal  statute  enacted  for  the  safety  of  employes, 
such  as  the  Federal  Safety  Appliance  Act  and  Boiler 
Inspection  Act,  if  it  is  shown  that  the  injury  is  due  to 
a  violation  of  such  federal  statutory  laws,  the  doctrine 
of  assumption  of  risk  is  absolutely  wiped  out  and  is  no 
defense  whatever  to  an  action  under  tlie  federal  act." 


29.  Erie  R.  Co.  v.  Purucker, 
244  U.  S.  320,  61  L.  Ed.  1166,  37 
Sup.  Ct.  629;  Baugham  v.  New 
York,  P.  &  N.  R.  .Co.,  241  U.  S. 
237,  60  L.  Ed.  977,  36  Sup.  Ct. 
592,  13  N.  C.  C.  A.  138;  Texas 
&  P.  R.  Co.  V.  Rigsby,  241  U.  S. 
33,  60  L.  Ed.  874.  36  Sup.  Ct. 
482;  Grand  Trunk  Western  R.  Co. 
V.  Lindsay,  233  U.  S.  42,  58  L. 
Ed.  838,  34  Sup.  Ct.  581,  Ann.  Cas. 
19],4C  168;  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  V.  Hall,  155  C.  C.  A. 
606,  243  Fed.  76;  St.  Louis  Mer- 
chants' Bridge  Terminal  R.  Co.  v. 
Schuerman,  150  C.  C.  A.  203,  237 
Fed.  1;  Clark  v.  Erie  R.  Co.,  230 
Fed.  478;  Columbia  &  P.  S.  R. 
Co.  V.  Sauter,  139  C.  C.  A.  150, 
223  Fed.  604;  Schweig  v.  Chicago, 
M.  &  St.  P.  R.  Co..  132  C.  C.  A. 
660,  216  Fed.  750,  7  N.  C.  C.  A. 
135. 

Alabama.  Southern  R.  Co.  v. 
Peters,  194  Ala.  94,  69  So.  611. 

Georgia.     Southern   Ry.    Co.    v. 

Blackwell,  Ga.  App.  ,  93 

S.  E.  321;  Atlantic  Coast  Line  R. 

Co.    V.    Kennedy,    Ga.    App. 

,  92  S.   E.  973;    Charleston  & 

W.  C.  R.  Co.  V.  Sylvester,  17  Ga. 
App.  85,  86  S.  E.  275;  Kirbo  v. 
Southern  R.  Co.,  16  Ga.  App.  49, 
84  S.  E.  491. 

Indiana.  Cincinnati,  H.  &  D.  Ry. 

Co.  V.  Gross,  Ind.  App.  , 

111   N.    E.    653. 

Kentucky.  Cincinnati,  N.  0.  & 
T.  P.  R.  Co.  V.  York,  176  Ky.  9, 
194  S.  W.  1034;  Louisville  &  N. 
R.  Co.  V.  Williams'  Adm'r,  175  Ky. 


679,  194  S.  W.  920;  Jones  v.  South- 
ern Ry.  in  Kentucky,  175  Ky. 
455,  194  S.  W.  558;  Young  v.  Nor- 
folk &  W.  R.  Co.,  171  Ky.  510, 
188  S.  W.  621;  Louisville,  H.  & 
St.  L.  R.  Co.,  V.  Wright,  170  Ky. 
230,  185  S.  W.  801;  Louisville  & 
N.  R.  Co.  V.  Patrick,  167  Ky.  118, 
180  S.  W.  55;  Davis  v.  Chesapeake 
&  0.  R.  Co.,  166  Ky.  490,  179  S. 
W.  422;  Truesdell  v.  Chesapeake 
&  0.  R.  Co  ,  159  Ky.  718,  169  S. 
W.  471;  Chesapeake  &  O.  R.  Co. 
V.  De  Atley,  159  Ky.  687,  167  S. 
W.  933;  Glenn  v.  Cincinnati,  N. 
O.  &  T.  P.  R.  Co..  157  Ky.  453, 
163    S.    W.    461. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Whitacre,  124  Md.  411,  92 
Atl.    1060. 

Michigan.  Gaines  v.  Grand 
Trunk  R.  Co  of  Canada.  193  Mich. 
398,  159  N.  W.  542. 

Minnesota.  Clapper  v.  Dickin- 
son, 137  Minn.  415,  163  N.  W. 
752:  Thompson  v.  Minneapolis  & 
St.  L.  R.  Co.,  133  Minn.  203,  158 
N.  W.  42;  Marshall  v.  Chicago, 
R.  L  &  P.  R.  Co..  131  Minn.  392. 
155  N.  W.  208;  La  Mere  v.  Rail- 
way Transfer  Co.,  125  Minn.  526, 
147  N.  W.  1134:  Ahrens  v.  Chicago 
M.  &  St.  P.  R  Co.,  121  Minn,  335. 
141   N.  W.  297. 

Missouri.  Christy  v.  Wabash  R. 
Co.,  195  Mo.  App.  232.  191  S.  W. 
241;  Young  v.  Lusk.  268  Mo.  625. 
187    S.    W.    849;    Noel    v.    Quincy, 

0.  &  K.  C.  R.  Co.,  Mo.  App. 

,  182   S.  W.  787. 


1010 


Injuries   to  Interstate  Employes.        [§  563 


The  lang-iiag-e  of  section  4  of  the  act  makes  this  pro- 
position clear  and  it  has  been  so  construed  by  the 
courts  Tvithout  dissent.'"  Passing  upon  a  requested 
instruction  in  an  action  for  violation  of  the  Safety 
Appliance  Act  which  charged  that  if  the  plaintiff  knew 
the  defect  and  the  risk  arising  therefrom,  he  could  not 
recover,  the  Supreme  Court  of  the  United  States  in  the 
Crockett  case,  said:  "Upon  the  merits,  we  of  course 
sustained  the  contention  that  by  the  Employers'  Lia- 
bility Act  the  defense  of  assumption  of  risk  remains  as 
at  common  law,  saving  in  the  cases  mentioned  in  section 
4,  that  is  to  say:     'Any  case  where  the   violation  by 


Montana.  Sorenson  v.  North- 
ern Pac.  R.  Co.,  53  Mont.  268.  163 
Pac.  560. 

Nebraska.  Huxoll  v.  Union  Pac. 
R.  Co.,  99  Neb.  170,  155  N.  W. 
900. 

New  Hampshire.       Castonia     v. 

Maine    Cent.    R.    Co.,   N.   H. 

,   100  Atl.  60. 

New  Jersey.  Parker  v.  Atlan- 
tic City  R.  Co.,  87  N.  J.  L.  148, 
93  Atl.   574. 

Nortb  Carolina.  Sears  v.  Atlan- 
tic Coast  Line  R.  Co.,  169  N.  C.  446, 
86    S.    E.    176. 

Oklahoma.     Chicago.  R.  L  &  P. 

R.  Co.,  V.  Jackson, Okla. , 

160  Pac.  736;  St.  Louis  &  S.  F. 
R.  Co.,  V.  Snowden,  48  Okla.  115, 
149    Pac.    1083. 

Oregon.  Oberlin  v.  Oregon-Wash- 
ington R.  &  Nav.  Co.,  71  Ore.  177, 
142    Pac.    554. 

South  Carolina.  Steele  v.  Atlan- 
tic Coast  Line  R.  Co.,  103  S.  C. 
102,  87  S.  E.  639. 

South    Dakota.     Lee    v.    Great 

Northern     Ry.     Co.,    S.     D. 

,  163  N.  W.  560. 

Texas.      Chicago,    R.       I.    &    G. 

Ry.    Co.    V.    De    Bord,    Tex. 

,    192   S.    W.   767;    Gulf,   C.   & 

S.  F.  Ry.  Co.  V.  Cooper,  Tex. 


Civ.    App.    — -,    191    S.    W.    579. 

Virginia.  Norfolk  &  W.  Ry.  Co. 
V.  Tucker's  Adm'x,  120  Va.  540, 
91    S.    E.    61.4. 

Washington.  Swanson  v.  Ore- 
gon-Washington R.  &  Nav.  Co.,  92 
Wash.  423,  159  Pac.  379;  Bolch 
V.  Chicago,  M.  &  St.  P.  R.  Co., 
90  Wash.  47,  155  Pac.  422;  Lauer 
"v.  Northern  Pac.  R.  Co.  83,  Wash. 
465.  145  Pac.  606. 

West  Virginia.  Hull  v.  Virgin- 
ian R.  Co.,  78  W.  Va.  25,  88  S.  E. 
1060. 

Wisconsin.  Hovaneck  v.  Great 
Northern  R.  Co.,  165  Wis.  511,  162 
N.  W.  927;  Smiegil  v.  Great  North- 
ern R.  Co.,  165  W.  57,  160  N.  W. 
1057. 

If  an  employe  of  an  interstate 
carrier  is  injured  by  reason  of  a 
violation  of  the  Federal  Boiler 
Inspection  Act,  assumption  of 
risk  is  not  a  defense  and  his  con- 
tributory negligence  does  not  re- 
duce his  damages.  Great  North- 
ern Ry.  Co.  V.  Donaldson,  246  U. 

S.    121,    62    L.    Ed.    ,    38    Sup. 

Ct.  230. 

30.  Southern  R.  Co.  v.  Crock- 
ett, 234  U.  S.  725,  58  L.  Ed.  1564, 
34  Sup.  Ct.  897;  Clark  v.  Erie 
R.  Co.,  230  Fed.  478. 


'§  564-]  Assumption   of   Risk,  1011 

suoli  eoiimioii  carrier  of  any  statute  enacted  for  the 
safety  of  employes  contributed  to  the  injury  or  death  of 
such  enii)]oye. '  "  If  a  failure  to  comply  with  federal 
safety  ai)pliance  laws  contributes  ''in  whole  or  in  part" 
to  an  injury,  assumption  of  risk  is  not  a  defense. ^^ 

§  564.  State  Statutes  for  Safety  of  Employes  not 
Included.  Tlic  jirovision  of  the  statute  whicli  (i(M'lares 
that  no  employe  shall  be  held  to  have  assumed  the  risk 
of  his  employment  where  the  violation  by  the  common 
(uirrier  of  any  statute  enacted  for  the  safety  of  employes 
contributed  to  the  injury  or  death,  refers  only  to  federal 
statutes  and  does  not  include  state  statutes  enacted  for 
the  safety  of  employes.  In  the  early  enforcement  of  the 
federal  act  a  few  courts  held  that  the  clause  ' '  any  statute 
enacted  for  the  safety  of  employes"  included  state 
statutes  as  well  as  federal.  If  these  rulings  had  been 
followed,  then  assumption  of  risk  under  the  national  law 
would  have  been  an  absolute  defense  to  the  same  acts 
in  some  states,  and  not  in  others,  thus  destroying  the 
uniformity  of  the  applicability  of  the  federal  law 
throughout  the  nation.  Such  a  contention  was  con- 
demned by  the  Supreme  Court  of  the  United  States  in 
the  following  language:^^  "By  the  phrase  'any  statute 
enacted  for  the  safety  of  emploj'es,'  Congress  evidently 
intended  federal  statutes,  such  as  the  Safety  Appliance 
Acts  (March  2,  1893,  c.  196,  27  Stat.  531,  March  2,  1903, 
c.  976,  32  Stat.  943,  April  14,  1910,  cp.  160,  36  Stat.  298, 
February  17,  1911,  c.  103,  36  Stat.  913,)  and  the  Hours  of 
Service  Act  (March  4,  1907,  c.  2939,  34  Stat.  1415.) 
For  it  is  not  to  be  conceived  that,  in  enacting  a  general 
law  for  establishing  and  enforcing  the  responsibility  of 
common  carriers  by  railroad  to  their  employes  in  inter- 
state commerce.  Congress  intended  to  permit  the  legis- 
latures of  the  several  states  to  determine  the  effect  of 

31.  Union  Pac.  R.  Co.  v.  Hux-  v.  Ilorton.  233  U.  S.  492.  5S  L. 
oU,  245  U.  S.  535,  62  L.  Ed.  38  Ed.  1062,  34  Sup.  Ct.  635,  8  N. 
Sup  Ct.  187.  C.  C.   A.    834,   L.   R.   A.    1915C    1. 

32.  Seaboard    Air  Line   R.  Co.  Ann  Cas.  1915B  475. 


1012  Injueies  to  Interstate  Employes.        [§  564 

coutribiitory  negligence  and  assumption  of  risk,  by 
enacting  statutes  for  the  safety  of  employes,  since  this 
would  in  effect  relegate  to  state  control  two  of  the 
essential  factors  that  determine  the  responsibility  of  the 
employer. '  "^ 

§  565.  Assumption  of  Risk  Eliminated  in  Actions 
for  Violation  of  Hours  of  Service  Act.  In  an  action 
under  the  federal  act  for  an  injury  to  an  employe  within 
its  terms,  if  the  injury  or  death  is  caused  by  a  violation 
of  the  Federal  Hours  of  Service  Act,'*  assumption  of 
risk  is  not  a  defense  to  the  action.''  But  the  un- 
justified retention  of  an  employe  at  his  work  in 
violation  of  the  Hours  of  Service  Act  does  not  deprive 
the  carrier  of  the  defense  of  assumption  of  risk  unless 
the  breach  of  the  statute  contributes  to  the  injuiy.'' 
"In  this  case  there  was  evidence  that  whether  technical- 
ly on  duty  or  not,  the  plaintiff  had  been  greatly  over- 
taxed before  the  final  strain  of  more  than  sixteen  hours, 
and  that,  as  a  physical  fact,  it  was  far  from  impossible 
that  the  fatigue  should  have  been  a  cause  proximately 
contributing  to  all  that  happened.  If  so,  then  by  the 
Employers'  Liability  Act,  sees.  3  and  4,  questions  of 
negligence  and  assumption  of  risk  disappear.'""' 


>  >37 


§  566.  Confusing  Assumption  of  Risk  with  Con- 
tributory Negligence  in  Jury  Instructions  Under  Federal 
Act.     The    supreme    court  of    appeals    of    Virginia'' 

33.  Accord:  Columbia  &  P.  S.  Ct.  121,  10  N.  C.  C.  A.  778; 
R,  Co.  V.  Sauter,  139  C.  C.  A.  Schweig  v.  Chicago,  M.  &  St.  P. 
150,  223  Fed.  604;  Chicago,  R.  I.  R.  Co.,  132  C.  C.  A.  660,  216  Fed. 
&    G.    Ry.    Co.   V.    De   Bord,    •  750,  7  N.  C.  C.  A.  135. 

Tex.  ;  192  S.  W.  767.  36.    Atchison,  T.  &  S.  F.  R.  Co. 

34.  Hours  of  Service  Act,  v.  Swearingen,  239  U.  S.  339,  60 
March  4,  1907,  c.  2939,  34  Stat.  L.  Ed.  317,  36  Sup.  Ct.  121,  10  N. 
1415.  C.   C.   A.   778. 

35.  Baltimore  &  0.  R.  Co.  v.  37.  Baltimore  &  O.  R.  Co.  v. 
Wilson,  242  U.  S.  295,  61  L.  Ed.  Wilson,  242  U.  S.  295,  61  L.  Ed. 
312,  37  Sup.  Ct.  123;  Atchison,  T.  312,    37    Sup.    Ct.    123. 

&  S.  F.  R.  Co.  V.  Swearingen,  239  38.     Southern  R.  Co.  v.  Jacobs, 

U.  S.  339,  60  L.  Ed.  317,  36  Sup.  116  Va.   189,  81  S.  E.  99. 


§  566]  Assumption   of   Risk.  1013 

analyzod  and  roviowed  many  decisions  of  tlio  national 
and  stato  coni-fs  discussing  and  applying  the  doctrine  of 
assiiniption  of  risk  under  the  federal  act.^^  In  the  Jacobs 
case,  tlic  (picstion  before  the  court  was  whether  a  rail- 
road brakonian  assumed  the  risk  of  injury  from  a  pile  of 
cinders  negligently  pennitted  to  accumulate  alongside 
of  the  track  in  a  railroad  yard  which  the  jury  found, 
under  the  instructions  of  the  court,  constituted  a  defect 
or  insufficiency  due  to  the  negligence  of  the  company. 
Over  the  objections  of  the  railroad  company,  on  the 
question  of  assumption  of  risk,  the  court  instructed  the 
jury  as  follows:  ''The  court  further  instructs  the  jury 
tliat  knowledge  by  the  plaintiff  of  the  unsafe  character 
or  condition  of  the  said  roadway  is  of  itself  no  defense 
to  an  action  for  an  injury  caused  to  him  thereby.  Such 
knowledge,  however,  if  the  jury  believe  from  the 
evidence  that  he  had  such  knowledge,  may  be  considered 
by  the  jury  along  with  all  the  evidence  in  the  case  in  de- 
termining whether  the  plaintiff  was  himself  gTiilty  of 
negligence  which  contributed  to  produce  the  injury 
mentioned  in  the  declaration,  but  the  fact  that  the  plain- 
tiff may  himself  have  been  guilty  of  contributory  negli- 
gence shall  not  bar  a  recovery,  but  the  damages  shall  be 
diminished  in  proportion  to  the  amount  of  contributoiy 
negligence,  if  such  there  were,  which  they  may  believe 
from  the  evidence  was  attributable  to  said  plaintiff  under 
the  circumstances."  The  defendant,  on  the  other  hand, 
request  was  denied  by  the  trial  court:     "A.  The  court 

39.     The   cases   cited,    analyzed  51   L.    Ed.    681,   27   Sup.   Ct.   407; 

and  discussed,  were  the  foUowing:  Choctaw,   O.   &  G.   R.   Co.   v.   Mc- 

Seaboard  Air  Line  Ry.  v.  Moore,  Dade,  191,  U.  S.  64,  48  L.  Ed.  96, 

228  U.   S.   433,   57   L.   Ed.   907,  33  24    Sup.    Ct.    24;    Texas,    &   P.   R. 

Sup.    Ct.    580;    Gulf,    C.    &    S.    F.  Co.  v.    Archibald,   170   U.    S.    665, 

R.  Co.  V.  McGinnis,  228  U.  S.  173,  42  L.  Ed.   1188,   18   Sup.  Ct.  777; 

57  L.  Ed.  785,  33  Sup.  Ct.  426,  3  Central  Vermont  R.  Co.  v.  Bethune. 

N.  C.  C.  A.  806;   Mondou  v.  New  124    C.   C.    A.    528,    206   Fed.   868; 

York,  N.  H.  &  H.  R.   Co.,  223  U.  Barker  v.   Kansas  City,   M.   &  O. 

S.   1,   56   L.   Ed.   327,   32   Sup.   Ct.  R.   Co.,   88  Kan.  767,  43  L.  R.  A. 

169,   1   N.  C.  C.  A.  875,   38  L.   R.  (N.     S.)     1121;    129     Pac.     1151; 

A.  (N.  S.)  44;   Schlemmer  v.  Buf-  Freeman     v.    Powell.     (Tex.    Civ. 

falo,  R.  &  P.  R.  Co.,  205  U.  S.  1,  App.),  144  S.  W.  1033. 


1014  IxjuEiES   TO   Interstate   Employes.        [^  566 

instructs  tlie  jury  that  if  they  believe  from  the  evidence 
that  the  existence  of  the  cinder  pile  was  known  to  the 
]>laintiff,  or  that  he  had  been  working-  on  the  Southern 
Railway  at  Lawrenceville  for  more  than  a  year,  and  that 
the  cinders  had  been  piled  at  the  same  place  in  the  way 
described  by'  the  witness  for  many  years  prior  to  the 
accident,  and  that  the  plaintiff  had  failed  to  show  that 
he  had  made  complaint  or  objection  on  account  of  the 
cinder  pile,  then  he  assumed  the  risk  of  danger  from 
the  cinder  pile,  if  there  was  any  danger  in  it,  and  the 
Act  of  Congress  approved  April  22,  1908,  permits  this 
defense,  and  the  jur^^  should  find  their  verdict  for  the 
defendant."  The  court  held  that,  under  the  facts,  the 
defendant's  refused  instruction  should  have  been  given 
and  that  it  was  error  to  give  plaintiff's  second  in- 
struction for  the  reason  that  under  the  federal  statute 
assumption  of  risk  is  an  absolute  defense  as  at  common 
law,  the  court  holding  that  an  employe  assumes  the  risk 
of  injury  from  defective  appliances  furnished  by  his 
employer  only  when  the  defect  is  known  to,  or  plainly 
observable  by,  the  employe.  Reviewing  the  cases  cited 
in  the  preceding  note,  the  court  said:  "Cases  might  be 
multiplied  to  any  extent  to  show  that  the  doctrine  of 
assumed  risks  covers  more  than  those  risks  which  are 
ordinarily  incident  to  the  business,  and  embraces  the  use 
of  defective  appliances  and  work  of  almost  every 
description  where  the  emploj'C  with  knowledge  of  the 
defect,  continues  to  use  it  without  notice  to  the  em- 
1)1  oyer. " 

§  567.  When  Assumption  of  Risk  is  no  Defense 
When  there  is  a  Plurality  of  Causes.  Where  the  injury 
to  an  employe  is  due  to  two  acts  contributing  as 
proximate  causes,  notwithstanding  the  fact  that  the  em- 
ploye assumes  the  risk  from  one  of  these  causes, 
assumption  of  risk  is  no  defense  to  the  action  if  the 
other  proximate  cause  is  one  for  which  the  master  is 
liable  and  is  not  an  ordinary  risk  of  the  emplojTnent 


§  569]  Assumption    of   I^isk.  1015 

or   Olio   of   wliioli    tliG   oiiiployo    lias   no   coiistructi\'e   or 
af'tnal   knowledge." 

§  568.  Violations  of  Rules  not  Assumption  of  Risk. 
In  ail  action  under  the  federal  act,  the  defendant 
pleaded  in  its  answer  that  the  plaintiff  had  contributed 
to  his  own  injurj^  by  violating  one  of  its  rules  govern- 
ing employes  and  that  he  therefore  assumed  the  risk. 
The  court  held  that  such  a  fact,  even  if  proven,  did  not 
show  assumption  of  risk  for  the  reason  that  such  a 
defense  is  referable  to  contributory  negligence  and  not 
to    assumption    of    risk." 

§  569.  Concrete  Instruction  must  be  Given,  if 
Requested.  In  instructing  the  .jury  on  the  question  of 
assiini])tion  of  risk  a  concrete  instruction  applicable  to 
the  phase  of  the  evidence  should  be  given;  and  the 
court  should  not  couch  the  instruction  in  such  general 
and  sweeping  language  that  it  is  not  calculated  to  give 
the  jury  an  accurate  understanding  of  the  law  upon 
the  subject.^-  In  an  action  under  the  federal  act,  the 
plaintiff,  an  engineer,  was  injured  by  the  explosion  of 
a  water  glass  on  which  the  gauge  was  missing.  The 
United  States  Supreme  Court  held  that  the  state  trial 
court  committed  reversible  error  in  refusing  to  give 
the  following  instruction:  "If  you  find  by  a  pre- 
ponderance of  evidence  that  the  water  glass  on  the 
engine  on  which  plaintiff  was  employed  was  not  provided 
with  a  guard  glass,  and  the  condition  of  the  glass  was 
open  and  obvious  and  was  fully  known  to  the  plaintiff, 
and  he  continued  to  use  such  water  glass  with  such 
knowledge  and  that  he  knew  the  risk  incident  thereto, 
then  the  court  charges  you  that  the  plaintiff  voluntarily 

40.  Northern    Pac.    R.   Co.     v.       142    Pac.    554;    Carter    v.    Kansas 

Maerkl,  117  C.  C.  A.  237,  198  Fed.       City  Southern  Ry.  Co.,  Tex. 

1.  Civ.   App.  .   155   S.  W.   638. c 

41.  Macon.  D.  &  S.  R.  Co.  v.  42.  Norfolk  &  W.  R.  Co.  v. 
Musgrove,  145  Ga.  647.  89  S.  E.  Earnest  229  U.  S.  114,  57  L.  Ed. 
767;  Oberlin  v.  Oregon  Washing-  1096,  33  Sup.  Ct.  654,  Ann.  Cas. 
ton    R.    &   Nav.   Co.,    71    Ore.    177.  1914C    172. 


1016  Injuries  to  Inteestate  Employes.        [^  569 

assumed  the  risk  incident  to  such  iise."*^  But  in  an 
action  for  a  negligent  injury  to  a  section  man  who  was 
struck  by  an  engine,  an  instruction  that  if  the  jury 
found  that  the  plaintiff  voluntarily,  for  his  own  conven- 
ience, went  along  using  the  track,  was  properly  re- 
fused for  the  reason  that  it  omitted  elements  essential 
to  make  assumption  of  risk  applicable  to  the  case  in  that 
it  failed  to  call  attention  to  the  circumstances  under 
which  the  testimony  tended  to  show  that  plaintiff  was 
using  the  tracks  at  the  time  and  the  knowledge  of  con- 
ditions which  should  have  been  taken  into  consider- 
ation in  order  to  attribute  assumption  of  risk  to  him, 
and  failed  to  take  into  account  the  testimony  that  the 
engine  ran  without  signals  or  warning  to  him." 

§  570.  Failure  to  Instruct  on  Assumption  of  Risk 
not  Error  when  Defendant  has  not  Been  Prejudiced 
Thereby.  A  judgment  against  a  common  carrier  by 
railroad  under  the  Federal  Act  should  not  be  reversed 
for  the  failure  of  a  trial  court  to  instruct  on  assumption 
of  risk  even  when  there  is  evidence  justifying  a  charge 
upon  that  subject  if  the  defendant  has  not  been  preju- 
diced thereby.*^  Thus,  in  the  case  cited,  the  defendant 
requested  the  trial  court  to  instruct  the  jury  that  if  the 
decedent  knew  of  the  presence  of  a  piece  of  timber  over 
the  track  and  knew  that  it  would  not  clear  a  man 
standing  on  top  of  a  box  car,  and  with  such  knowledge 
continued  in  the  service  of  the  company,  then  he  must 
be  held  to  have  assumed  the  risk  of  being  injured  by 
being  struck  by  the  piece  of  timber.     The  refusal   of 

43.  Seaboard  Air  Line  R.  Co.  gent  operation  of  the  train,  if  the 
V.  Horton,  233  U.  S.  492,  58  L.  jury  found  it  to  be  such,  unless 
Ed.  1062,  34  Sup.  Ct.  635,  8  N.  the  consequent  danger  was  so 
C.  C.  A.  834,  L.  R.  A.  1915C  1,  obvious  that  an  ordinarily  pru- 
Ann  Cas.   1915B  475.  dent  person  in  his  situation  would 

44.  Erie  R.  Co.  v.  Purucker,  have  observed  and  appreciated 
244  U.  S.   320,   61  L.   Ed.  1166,  37  it." 

Sup.    Ct.     629       Said     the    court:  45.     Kanawah   &    M.    R.    Co.   v. 

"Under  such  circumstances  the  in-  Kerse,    239    U.    S.    576,    60    L.    Ed. 

jured  man  would  not  assume  the  448,  36  Sup.  Ct.  174. 
risk    attributable    to    the    negli- 


^  572]  Assumption    of  Risk.  1017 

lliis  iXM|uost  was  lield  to  be  error,  but  as  the  jury,  by 
specific  finding's  of  fact,  negatived  the  hypothesis  upon 
which  the  instruction  was  l)ased,  tliat  is,  in  response 
to  particular  interrogatories  submitted  by  the  court, 
found  that  the  decedent  did  not  know  that  the  piece  of 
timber  was  stretched  over  the  track,  the  error  did  not 
result  in  a  reversal  of  the  judgment  as  the  carrier  was 
not  ])rejudi('od  thereby. 

§  571.  Burden  of  Proving  Assumption  of  Risk 
upon  Defendant.  The  defense  of  assumption  of  risk  is 
affirmative  in  character.  The  plaintiff  is  not  required 
to  negative  it  in  his  petition  in  order  to  make  a  prima 
facie  case,  and  the  burden  of  proving  that  an  employe 
assumed  the  risk  is  upon  the  defendant.*® 

§  572.  Defense  of  Assumption  of  Risk  Must  Be 
Pleaded  to  be  Available.  Unless  from  all  the  evidence 
introduced  by  the  plaintiff  in  an  action  under  the 
federal  act,  the  court  can  conclude  as  a  matter  of  law 
that  the  plaintiff  assumed  the  risk,  the  defense  of 
assumption  of  risk  is  not  available  to  a  defendant  in  an 
action  under  the  statute  unless  pleaded  in  the  answer.*' 
In  the  Vickery  case,  cited  in  the  notes,  defendant  in- 
sisted that  the  plaintiff  had  assumed  the  risk  of  a 
switch  stand  being  erected  too  close  to  a  railroad 
track  witbout  a  warning  light.  To  this  contention  the 
court   said:     "The   lisk   here   complained   of  arose,   as 

46.     Kenyon  v.  Illinois  Cent.  R.  "The  burden    of  proof    on    this 

Co.,  173  Iowa  484,  155  N.  W.  810;  question  of  assumption  of  risk  is 

Falyk  V.  Pennsylvania  R.  Co.,  256  ^^  ^^^  defendant,  and  not  on  the 

Pa.    397,    100   Atl.    961.  plaintiff,  and  unless  the  evidence 


47.  Alabama  Great  Southern  R. 
Co.  V.  Skotzy,  196  Ala.  25,  71  So. 
335;  Vickery  v.  New  London 
Northern  R.  Co.,  87  Conn.  634,  89 


tending  to  show  it  is  clear  and 
from  unimpeached  witnesses,  and 
free  from  contradiction,  the  trial 


Atl.    277;    Phillips   v.    Union    Pac.  court  cannot  be  charged  with  er- 

R.  Co.,   100   Neb.    157,    158   N.   W.  i"or  in  refusing  to  take  the  ques- 

966;    Lloyd   v.    Southern   Ry.   Co,  tion    from    the    jury."      Robie    v. 

166   N.   C.   24,   7  N.  C.   C.   A.  520,  Boston  &  M.  R.  R.  Vt.  , 

81     S.    E.     1003.  100  Atl.  925. 


1018  Injuries  to  Interstate   Employes.        [<§.  572 

alleged,  from  the  negligent  erection  of  a  switch  stand 
in   dangerous  proximity   to    one   of   the   tracks  in   the 
railroad    yard    and    the    negligent    failure    to    have    a 
warning  light  upon  it.     This  was  not  a  risk  ordinarily 
incident  to  the  railroad  service  in  which  the  plaintiff 
as  a  brakeman  was  employed  but  one  arising  from  the 
defendant's  negligence.     The  plaintiff  may  have  known 
of  it  and  have  volmitarily  assumed  it  but  he  did  not 
do  so  by  entering  into  his  employment.    If  such  was  the 
fact,  it  was  incumbent  upon  the  defendant  to  plead  and 
prove."     Following  a  local  rule  of  pleading  which  re- 
quired a  servant  in  actions  against  the  master  for  per- 
sonal  injuries   to   negative    assumption    of   risk    in   his 
comj3laint,  ^^  an  appellate  court  of  Indiana  held  that  the 
plaintiff  in  an  action   under   the   federal   act  must,   in 
his  petition,  allege  that  he  did  not  have  full  knowledge 
of  the  conditions  which  he   charges  constituted   negli- 
gence  on  the  part  of  his  employer.*'    The   correctness 
of   the   ruling   of   the   court  in   this    case    is    doubtful. 
While    matters    of    pleading    and    practice    under    the 
federal   act   must    be    determined   by    the    laws    of   the 
forum,   yet   a   substantive  right   under  the   federal    act 
cannot  be  defeated  by  a  rule  of  practice.'" 

§  573.  Cases  in  which  Interstate  Employes  were 
Held  to  Have  Assumed  the  Risk.  Employes  engaged 
in  interstate  commerce  were  held  by  the  courts  to  have 
no  remedy  under  the  federal  act  because  of  assumption 
of  risk,  under  the  following  circumstances:  an  engineer 
while  his  train  was  moving,  climbed  on  top  of  the  coal  in 
the  tender  to  ascertain  the  amount  of  water  in  the  tank 
by  looking  through  a  man  hole  at  the  rear  end  of  the 
tender,  and  while  returning,  came  in  contact  with   an 

48.      Indianapolis    &    G.    Rapid  49.  Cincinnati,  H.  &  D.  Ry.  Co. 

Transit  Co.  v.  Foreman,  162  Ind.       v.  Gross,  Ind.  App.  ,  111 

85,  102  Am.  St.  Rep.  18.5,  69  N.  E.  N.    E.    653. 

669;    Ames   v.   Lake    Shore   &    M.  50.     Central  Vermont  R.  Co.  v. 

S.  Ry.  Co.,  135  Ind.  363,  35  N.  E.  White,   238   U.   S.   507,   59   L.   Ed. 

117.  1433,   35   Sup.  Ct.   865,   9   N.  C.  C. 

A  265,  Ann.  Cas.  1916B  252. 


(^  573 J  ArtsuMP'JioN    OF    Risk.  1019 

electric,  wii'e  aitacliod  to  an  ovoi'liead  l>rid«re.  He  was 
instantly  killed  by  the  electric  cnncnt.  This  wire  was 
suspended  over  tlie  center  line  of  the  tracks  upon  whicli 
the  train  was  travelin.i::  and  was  used  for  the  ojieration 
of  trains  by  electricity.  Passenger  trains  had  been 
operated  on  this  road  for  several  years  by  electricity. 
The  method  for  electrical  operation  was  that  known  as 
the  overhead  system.  The  equipment  required  for  this 
method  consisted  in  part  of  steel  structures  by  the  side 
of  and  across  the  tracks  for  the  support  of  wires  run- 
ning* aloiiii:  the  center  lines  of  the  I'ails.  These  wires 
were  suspended  at  standaixl  hei,i^-ht,  which  was  22Vo  feet 
above  the  level  of  the  top  of  the  rails,  but  where  there 
were  overhead  bridges  it  was  necessary^  to  depress  them  at 
those  places.  The  court  held,  in  an  action  under  the 
federal  act,  for  the  death  of  the  engineer,  that  the 
decedent  assumed  the  risk  and  that  there  could  be  no 
recovery.^^  Tn  so  holding  that  the  decedent  had 
assumed  the  risk,  the  court  said:  "As  bearing  upon 
the  question  of  the  intestate's  assumption  of  the  risk 
which  caused  his  death,  the  pertinent  facts  lie  outside 
of  the  realm  of  dispute  or  uncertainty.  They  show 
that  Bottomley  had  full  knowledge  of  all  the  physical 
factors  in  the  situation.  As  an  engineer,  he  was 
familiar  with  engines  and  tenders  and  their  proportions. 
The  engine  he  was  driving  was  one  of  moderate  size, 
and  of  a  type  long  in  use.  Its  tender,  whether  of  the 
large  or  smaller  size,  was  one  in  use  with  this  type  of 
engine.  It  was  neither  special  nor  unusual.  In  his  years 
of  experience,  for  the  most  part  confined  to  this  section 
of  the  road,  and  his  recent  months  of  frequent  service 
u])on  it,  as  engineer,  he  must  have  become  acquainted 
with  the  existence  of  the  many  overhead  bridges  which 
here  span  the  tracks,  with  the  narrow  space  between 
bridges  and  tops  of  engine  and  tender,  and  with  the 
manner  in  which  the  electric  service  wires  were  strung 
in  cari-ying  them   under  the  bridges.     These  conditions 

51.     Farley  v.  New  York,  N.  H.       &    H.    R.    Co.,    87    Conn.    328.    87 

Atl.  990. 


1020  Injuries  to  Interstate  Employes.        [^  573 

were  apparent  to  casual  observation;  they  had  remained 
unchanged  for  years;  and  they  were  closely  related  to 
the  performance  of  his  duties.  He  must  also  have 
known  that  these  wires  were  electrically  charged  for 
the  operation  of  trains.  As  a  locomotive  engineer  of 
experience  living  in  this  age  of  the  world,  he,  untold 
and  unwarned,  must  have  been  sufficiently  intelligent 
and  informed  to  know  of  the  latent  danger  which 
lurked  in  the  wires  so  charged  to  one  who  should  come 
into  contact  with  them  or  into  their  immediate  vicinity, 
and  of  the  extremity  of  that  danger.  But  that  matter 
aside,  the  knowledge  of  the  danger  had  been  so  directly 
and  forcibly  brought  home  to  him  through  the  notices 
and  warnings  given  to  him  by  the  defendant  that  he 
could  not  have  failed  both  to  know  the  danger  to  his 
life  that  there  would  be  in  permitting  himself  to  come 
into  contact  with  or  near  to  one  of  the  wires,  and  to 
comprehend  the  character  and  extent  of  that  danger. 
This  being  so,  he  certainly  knew  and  comprehended  the 
risk  incident  to  his  employment.  No  one  could  well  be 
expected  to  have  better  knowledge  or  a  more  adequate 
appreciation.  Possessed  of  this  knowledge  and  appre- 
ciation, he  had  for  years  chosen  to  continue  in  his  em- 
ployment. By  so  doing  he  assumed  its  risk,  which, 
during  these  years,  had  remained  unchanged,  and  been 
unenhanced  by  any  new  act  of  the  defendant  which 
could  by  possibility  be  imputed  to  it  as  negligence." 
A  railroad  special  agent  stepped  in  between  two  cars  of 
a  train  in  a  terminal  yard  without  the  knowledge  of 
the  trainmen  in  charge  of  the  train.  The  court  held 
that  he  assumed  the  risk  of  an  injury  from  the  move- 
ment of  the  train.^^  An  engineer  who  knew  that  the 
gauge  of  the  water  glass  on  his  engine  was  missing 
and  with  such  knowledge  continued  to  work  without 
complaint,  was  held  to  have  assumed  the  risk.^^    A  sec- 

52.  Helm  v.  Cincinnati,  N.  0.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
&  T.  P.  R.  Co.,  156  Ky.  240,  160  1062,  34  Sup.  Ct.  635,  8  N.  C.  C. 
S.    W.    945.  A.    834,    L.   R.    A.    1915C    1,    Ann. 

53.  Seaboard   Air  Line  R.  Co.  Cas.  1915B  475. 


<^  573]  Assumption   of   Risk.  1021 

tion  laborer  was  enj^a^od  in  removing  60-poiind  rails 
and  substituting  100-pounds  rails  on  a  switch  track. 
The  heavy  rails  had  been  deposited  near  the  tracks  a 
few  days  before  the  injury.  One  of  these  rails  was 
carried  to  the  track  and  laid  down.  The  second  rail 
was  then  carried  to  the  tracks.  A  foreman  was  in 
charge  of  the  work  and  IIh'  ])!aiiiliri"  was  a  member  of 
the  crew.  When  the  crew  reached  the  track  some  one 
of  the  crew  gave  the  signal  to  throw  the  rail.  When  the 
rail  was  tlirown,  it  rebounded  and  struck  and  injured 
plaintiff.  There  was  some  evidence  to  the  effect  that  the 
rail  brace  which  was  used  for  the  purpose  of  keeping 
the  GO-pound  rail  in  position  was  not  moved  when  the 
60-pound  rail  was  taken  up  and  that  the  heavier  rail, 
when  thrown,  struck  the  rail  brace  and  this  caused  the 
rail  to  rebound.  There  was  also  evidence  that  the  safer 
Avay  to  handle  the  rails  was  by  use  of  rail  tongs  but  it 
did  not  appear  that  sucii  tongs  were  being  used  during 
the  time  of  plaintiff's  employment.  The  usual  and  custom- 
ary way  of  moving  the  rails  from  one  place  to  another  was 
that  adopted  in  handling  the  rail  in  question.  The  sec- 
tion crew  picked  it  up  with  their  hands,  carried  it  to 
the  place  where  it  was  needed  and  then,  at  the  word 
of  some  member  of  the  crew,  dropped  it  on  the  ground. 
The  plaintiff  knew  of  the  presence  of  the  ties  and  of  the 
presence  of  the  rail  brace.  Under  these  facts  the  court 
said:  "As  the  plaintiff's  claim  does  not  grow  out  of  a 
violation  of  such  a  statute  (national  safety  statutes) 
the  doctrine  of  assumed  risk  applies.  Under  that 
doctrine,  the  employe  assumes  those  risks  which  are 
known  to  or  are  clearly  observable  by  him.  There  was 
nothing  complicated  about  the  character  of  the  work. 
The  operation  was  simple.  The  brace  and  ties  were 
clearly  observable  by  the  plaintiff.  It  is  not  insisted 
that  the  rail  was  dropped  or  thrown  in  a  negligent 
manner.  Being  dropped  without  negligence,  the  danger 
of  being  struck  by  it  was  one  of  the  risks  ordinarily 
and  usually  incident  to  the  employment,  and  therefore 


1022  IxjrRiKS  TO  Interstate  Employes.        [§  573 

one  wliich  plaintiff  assnmed. "  ^*  Decedent  was  a  boiler 
maker  helper  and  came  to  bis  death  in  the  machine 
shops  of  a  railroad  company.  In  these  shops  were  a 
number  of  tracks  and  between  these  tracks  were  what 
are  known  as  ''drop  pits,"  nine  feet  deep  and  about 
16  feet  long'  which  were  used  when  large  driving  wheels 
were  taken  off  of  locomotives.  The  pit  was  used  so  as 
to  avoid  the  necessity  of  jacking  up  the  locomotive  and 
so  that  the  driving  wheels  could  be  dropped  into  the 
pit.  There  was  a  cover  over  about  one-third  of  this 
pit  at  either  end  but  no  cover  over  about  one-third  of  it 
in  the  center.  An  engine  was  not  placed  over  this  pit 
unless  the  wheels  were  to  be  taken  off.  Decedent  had 
been  working  in  the  shops  for  some  time  and  understood 
the  premises  perfectly.  The  decedent  was  found  at  the 
bottom  of  the  pit  under  circumstances  showing  that  he 
fell  into  it,  his  head  having  struck  against  the  concrete 
bottom  and  this  caused  his  death.  The  accident  oc- 
curred after  dark.  There  were  lights  in  the  shop  but 
the  proof  tended  to  show  that  these  lights  did  not  shine 
upon  the  drop  pit  and  did  not  sufficiently  illuminate  it. 
There  were  no  barriers  around  the  pit  and  no  cover 
over  one-third  of  it.  The  drop  pit  was  only  a  few  feet 
from  where  the  decedent  had  been  working  all  day  and 
he  knew  where  it  was.  On  these  facts  the  trial  court 
sustained  a  demurrer  to  the  evidence  on  the  ground  of 
assumption  of  risk  in  a  suit  under  the  Federal  Em- 
l)]oyors'  Liability  Act  and  the  court's  action  was  sus- 
tained by  the  court  of  appeals.''  A  railroad  employe 
who  worked  54  out  of  57  hours  for  an  interstate  rail- 
road company  in  assisting  to  water  and  feed  cattle  in 
transit  unloaded  for  feed,  rest  and  water,  assumed 
the  risk  of  injury  due  to  a  fall  from  a  switch  engine 
claimed    to   have   been    caused    by  his    exhausted    con- 

54.     Truesdell  v.  Chesapeake  &  lity    on    other    grounds.      Neth    v. 

O.  R.  Co.,  159  Ky.  718,  169  S.  W.  Delano,  184  Mo.  App.  652,  171  S. 

471.     Under   quite   similar    facts,  W.  1. 

Judge    Trimble     of     the    Kansas  55.     Glenn  v.  Cincinnati,  N.  O. 

City     Court    of     Appeals    reached  &  T.  P.   R.   Co.,   157  Ky.   453,   163 

the  same  conclusion  of  non-liabi-  S.  W.  461. 


<§  574]  AssuMimoN    of   Risk.  1023 

dition,  as  he  knew  hcttci-  tlian  anyone  else  his  con- 
dition as  to  wlicther  lie  was  takin*^"  any  I'isks  in  con- 
linninn"  to  work   iiiidcr   siicli   eiivnnistances.'* 

§  574.  Cases  in  which  Interstate  Employes  were 
Held  not  to  have  Assumed  the  Risk,  Jiailicuid  (em- 
ployes cii^ai^cd  in  intcrstalu  coniniercc!  were  held  in 
actions  nnder  the  federal  act  not  to  have  assumed  the 
risk  under  the  following-  facts.  Decedent,  while  en- 
gaged in  cleaning  snow  from  the  tracks  of  a  railway 
company  when  there  was  mist,  smoke  and  some  snow, 
was  killed  hy  a  train  hound  from  New  York  to 
Philadel])hia.  At  the  ])Iace  of  the  accident  there  wei-o 
four  main  lines  of  trackage.  Shortly  after  9:00  o'clock 
in  the  morning  the  men  working  with  plaintiff  were 
warned  to  ste]^  off  track  No.  4  by  the  call  of  the  fore- 
man in  order  to  let  a  local  train  by.  The  decedent  and 
two  others  were  working  on  track  2.  There  was  no  call 
to  them,  the  practice  of  the  foreman  being  to  designate 
the  track  in  his  warning,  the  men  on  the  other  track 
continuing  to  work.  The  New  York  train  struck  the 
decedent  while  he  was  working  on  track  No.  2  and  it 
approached  without  any  signal  or  warning.  The  local 
train  was  slow  and  the  New  York  train  came  fast  and 
while  the  men  were  attracted  by  the  first,  the  other 
rushed  upon  them.  The  defendant  produced  testimony 
in  conflict  with  these  facts  shown  by  the  plaintiff. 
Speaking  of  the  legal  effect  of  this  evidence  on  the 
question  of  assumption  of  risk,  Mr.  Justice  ^fcKenna, 
for  the  court,  said:  "It  is  hence  contended  by  the  rail- 
way company  that  McGovern  assumed  the  risk  of  the 
situation  and  that,  therefore,  it  was  error  for  tlie 
district  court  to  refuse  to  give  an  instruction  which 
presented  that  contention.  We  have  given  the  testi- 
mony in  general  outline,  but  enough  to  show  that  what 
conflict  there  was  in  it  was  for  the  jury  to  judge  and 
what  deductions  there  were  to  be  made  from  it  were  for 

56.     Schweig  v.   Chicago.  M.   &       216  Fed.   750,   7   N.   C.   C.   A.    135. 
St.   P.    R.    Co.,    132    C.   C.   A.   6(50,       aff'g  205   Fed.  96. 


1024  Injuries  to  Inteestate  Employes.        [§  574 

the  jury  to  make.  And  the  district  court,  being  of 
this  view,  refused  to  cliarge  the  jury,  as  we  have  seen, 
that  McGovern  had  assumed  the  risk  of  the  situation. 
We  cannot  say  that  as  a  matter  of  law  the  court  was 
mistaken.  "^^  In  another  case  the  Supreme  Court  again 
held  that  a  deceased  employe  did  not  assume  the  risk 
under  the  circumstances  hereinafter  detailed.^^  The 
decedent  was  an  engineer  on  a  freight  train  proceeding 
southward  on  a  lead  track  in  a  railroad  yard.  Ahead 
of  him  were  some  cars  on  a  yard  track.  While  visible 
to  the  engineer  from  the  right  side  they  became  more 
and  more  invisible  as  the  train  advanced.  The  en- 
gineer asked  the  fireman,  who  was  on  the  left  side  of 
the  engine  and  in  full  view  of  the  cars,  whether  they 
were  clear  of  the  lead  track  and  was  answered  that 
they  were.  There  was  a  dispute  as  to  whether  a  head 
brakeman  was  riding  in  the  cab  and  whether  he  called 
the  engineer's  attention  to  the  fact  that  the  coal  cars 
were  not  in  the  clear.  But  there  was  no  dispute  that 
the  engineer  again  asked  the  fireman,  who  answered 
that  the  cars  were  not  clear  and  jumped  from  the  lo- 
comotive. The  engineer  shut  off  his  power  and  stepped 
to  the  left  side,  where,  from  the  collision  which  im- 
mediately resulted,  he  was  injured  and  died.  Concern- 
ing these  facts,  the  court  in  denying  that  as  a  matter  of 

57.  McGovern  v.  Philadelphia  would  not  declare  as  a  matter  of 
&  R.  R.  Co.,  235  U.  S.  389,  59  L.  law  that  the  engineer  knew  of 
Ed.  283,  35  Sup.  Ct.  127,  8  N.  C.  the  danger  or  must  be  presumed 
C.  A.  67.  to  have   known   of  it.    The   cases 

58.  Yazoo  &  M.  V.  R.  Co.  v.  holding  that  an  employe  assumes 
Wright,  235  U.  S.  376,  59  L.  Ed.  the  risk  due  to  the  master's  neg- 
277,  35  Sup.  Ct.  130,  aff'g  125  C.  ligence  when  the  defect  and  dan- 
C.  A.  25,  207  Fed.  281,  197  Fed.  94.  ger  arising  from  it,  is  known  or 
In  this  case  the  Supreme  Court  is  plainly  observable,  and  then 
ignored  the  rule  as  to  assumption  continues  in  the  employment 
of  risk  announced  by  Judge  Mc-  without  complaint,  were  cited  by 
Call,  the  trial  judge,  to  the  ef-  the  court  with  approval.  See 
feet  that  the  employe  does  not  in  section  555,  supra;  Gila  Valley 
any  case  assume  the  risk  due  to  G.  &  N.  R.  Co.  v.  Hall,  232  U. 
the  master's  negligence  (See  S.  94,  58  L.  Ed.  521,  34  Sup.  Ct. 
section  554,  supra) ;  but  the  229,  aff'g  13  Ariz.  170,  1  N.  C.  C. 
court  held  that,   on   the  facts,   it  A.  362,  112  Pac.  845. 


§  574]  Assumption  of  Risk.  1025 

law  tlio  dc'cedoiil  liad  assiiiiicd  llio  risk,  said:  ''Wliat- 
ever  may  be  tlic  diniciilty  of  distinguishing  in  many 
oases  between  tlie  ai)])lication  of  the  doctrine  of  as- 
sumption of  risk  and  the  j)rineiples  of  contributory 
negli^'ence,  tliat  tliei'c  is  no  such  difficulty  here  is  ap- 
parent since  tlie  facts  as  stated  above  absolutely  pre- 
(rludc  all  inference  that  tlie  cii.n-ineer  knew  or  from  the 
facts  shown  must  be  ])resunied  to  liave  known  tliat 
the  coal  cars  were  protruding;  over  tlie  track  on  which 
he  was  moving-  and  deliberately  elected  to  assume  the 
risk  of  collision  and  great  danger  which  would  be  the 
inevitable  result  of  his  continuing  the  forward  move- 
ment of  his  train."  The  court  in  this  case  cited  with 
approval  several  of  its  fonner  opinions  in  which  the 
assumjition  of  risk  was  discussed  and  these  cases  are 
given  in  the  notes.^^  A  switchman  was  jarred  from  the 
narrow  rim  of  the  pilot  of  a  "road"  engine  while  it  was 
being  used  at  night  in  the  yards  as  a  switch  engine. 
The  court  held  that  whether  he  assumed  the  risk  was  a 
question  for  the  jury.''"  A  brakeman  in  the  nighttime 
was  ordered  by  the  yard  master  to  couple  up  an  air 
hose  between  two  cars  and  it  was  necessary-  to  do  this 
by  hand.  The  brakeman  was  required  to  step  within 
the  tracks  and  attach  the  two  ends  of  the  air  hose  to- 
gether. While  so  at  work  he  was  struck  by  the  car  to 
which  he  had  been  ordered  to  couple  and  this  was 
caused  by  other  cars  being  negligently  ' '  kicked ' '  against 
it  by  other  employes.  The  court  held  tliat  the  plain- 
tiff did  not  assume  the  risk.*"     A  freight  conductor  did 

59.     Seaboard  Air  Line  R.   Co.  Ed.  905,   23  Sup.  Ct.  622.  13  Am. 

V.   Horton,   233    U.    S.   492,    58    L.  Neg.  Rep.  695:   Texas  &  P.  R.  Co. 

Ed.    1062.    34    Sup.    Ct.    635,    8    N.  v.  Archibald,  170  U.  S.  665,  42  L. 

C.    C.   A.   834,    L.    R.    A.    1915C    1,  Ed.   1188,   18   Sup.   Ct.  777,   4  Am. 

Ann.  Cas.  1915B  475;    Sehlemmer  Neg.    Rep.    746;    Union    Pac.    Ry. 

V.    Buffalo,    R.    &    P.    R.    Co..    205  Co.  v.  O'Brien,   161  U.   S.  451,  40 

U.    S.    1,   51    L.    Ed.   681,   27    Sup.  L.  Ed.  766.  16  Sup.  Ct.  618. 
Ct.  407;   Choctaw,  0.  &  G.  R.  Co.  60.     Louisville   &   N.    R.   Co.   v. 

V.    McDade,    191   U.    S.    64.    48    L.  Lankford.    126   C.    C.    A.    247.   209 

Ed.    96.    24    Sup.    Ct.    24.    15   Am.  Fed.    321. 

Neg.  Rep.  230;  Texas  &  P.  R.  Co.  61.     Chesapeake  &  O.  R.  Co.  v. 

V.  Behvmer.  189  U.  S.  468,  47  L.  ProfTit   134  C.  C.  A.   37.  218   Fed. 


]02ti  Injuries  to    Inteestate    Employes.        [§  574 

not  assume  the  risk  of  the  negligence  of  a  flagman 
working  under  him  who  failed  to  protect  the  rear  of  the 
train.''-  A  railway  employe  who  had  been  working  only 
three  or  four  days  on  a  three-wheeled  gasoline  car  did 
not  assume  the  risk  from  a  defective  flange  on  the 
wheel  of  the  car  of  which  he  was  ignorant  and  it  did 
not  appear  to  be  a  part  of  his  duty  to  inspect  the  wheel 
or  to  look  after  its  condition. ^'^^  An  employe  of  a  rail- 
road company  who  was  injured  in  a  collision  did  not 
assume  the  risk  of  an  injury  from  the  negligence  of  a 
railroad  campany  in  permitting  the  engine  to  be  used 
in  pulling  a  train  which  leaked  steam  so  that  the  en- 
gineer could  not  see  a  train  ahead  of  him."  A  track 
laborer  repairing  a  switch  at  night  in  the  terminal 
yards  of  a  railroad  company  did  not  assume  the  risk 
of  injury  due  to  the  negligence  of  the  company  in  caus- 
ing cars  to  be  upon  the  track  on  which  he  worked  un- 
der their  own  momentum  and  without  any  warning  or 
signal.''^  An  employe  injured  by  striking  an  unlighted 
switch  stand  too  close  to  the  track  did  not  assume 
the  risk  of  injury  therefrom.^"  A  section  man  who  was 
hurt  while  assisting  an  employe  in  taking  a  motor  car 
off  of  a  railroad  track  in  order  to  allow  a  train  to  pass 
did  not  assume  the  risk  of  injury  on  account  of  an  in- 
sufficient number  of  men  to  assist  him  as  he  had  no  time 
to  deliberate  and  determine  whether  the  car  could  be 
taken  off  the  track  by  two  men  with  safety."  A 
brakeman  injured  because  of  a  defective  fastening  in 
a  car  door,  did  not  assume  the  risk  of  injury  therefrom, 

62.  Pennsylvania  R.  Co.  v.  65.  Colasurdo  v.  Central  R.  R. 
Goughnour,  126  C.  C.  A.  39,  208  of  New  Jersey,  180  Fed.  832;  s. 
Fed.  961.                                                      c.  113  C.  C.  A.  379,  192  Fed.  901. 

63.  Gila  Valley,  G.  &  N.  R.  Co.  66.  Vickery  v.  New  London 
V.  Hall,  232  U.  S.  94,  58  L.  Ed.  Northern  R.  Co.,  87  Conn.  634,  89 
521,  34  Sup.  Ct.  229,  aff'g  13  Ariz.       Atl.  277. 

270,   1  N.  C.   C.   A.   362,  112   Pac.  67.     Missouri,   K   &  T.   Ry.  Co. 

345  of   Texas  v.    Freeman,   Tex. 

64.  Niles  v.   Central   Vermont  ,  168  S.  W.  69. 

R.    Co.,    87    Vt.    356,    89    Atl.    629. 


§  574]  Assumption  of  Risk.  1027 

it  was  held,  for  the  reason  tliat  tliere  was  no  evidence 
that  he  knew  of  the  defect  or  could  liave  known  of  it  by 
exercising  ordinary  care."® 

68.      Carter     v.      Kansas     City        Southern  Ky.  Co., Tex.  Civ. 

App.  ,   155   S.   W.   G:58. 


CHAPTER  XXIX. 

Contributory  Xegligence  Under  Liability  Act. 

Sec.  575.     The  Statutory  Provision. 
Sec.  576.     Contributory    Negligence    Defined. 

Sec.  577.     Right  of  Recovery   under  Federal   Act  not   Barred  by  Con- 
tributory Negligence. 
Sec.  578.     Two  Theories  of  Comparative  Negligence  Extant  in  United 

States. 
Sec.  579.     Purpose   of   Congress   in   Modifying  Common    Law   Rule  of 

Contributory  Negligence. 
Sec.  580.     Apportionment    of    Damages    under    Federal    Act    Different 

from    Georgia    Statute. 
Sec.  581.     Employe's  Contributory  Negligence  to  Reduce  Damages  must 

Proximately    Contribute    to    Injury. 
Sec.  582.     Gross  Negligence  of  Plaintiff  and  Sight  Negligence  of  Defend- 
ant Cannot  Defeat  Recovery. 
Sec.  583.     When    Defendant's    Act    is   no    Part   of   Causation,    Plaintiff 

Cannot  Recover. 
Sec.  584.     How    Damages    Apportioned    When    Employe    is    Guilty    of 

Contributory    Negligence. 
Sec.  585.     When  Duty  of  Trial  Court  to  Instruct  on  Contributory  Neg- 
ligence Arises  under  Federal  Act. 
Sec.  586.     Method  of  Instructing  the,  Jury  When  there  is  Evidence  of 

Contributory    Negligence. 
Sec.  587.     Instruction  on  Contributory  Negligence  in  Language  of  Sta- 
tute   not   Erroneous. 
Sec.  588.     Erroneous   Instructions   on   Contributory   Negligence   Under 

the  Federal  Act. 
Sec.  589.     When  Contributory  Negligence  of  Employe  Does  not  Dimin- 
ish  Damagesr— Federal   Safety  Appliance   Laws. 
Sec.  590.     Burden  is  Upon  Defendant  to  Prove  Contributory  Negligence 
Sec.  591.     Whether   Contributory   Negligence   Must  be   Pleaded,   Deter- 
mined by  State  Law. 
Sec.  592.     Evidence  of  Contributory  Negligence  Admissible  Under  Gen- 
eral Denial,  When. 

§  575.  The  Statutory  Provision.  Section  3  of  the 
Federal  Employers'  Liability  Act  provides  that  in  all 
actions  hereafter  brought  against  any  such  common 
carrier  by  railroad  imder  or  by  virtue  of  any  of  the 
provisions  of  this  act  to  recover  damages  for  personal 
injuries  to  an  employe,  or  where  such  injuries  have 
•  resulted  in  his  death,  the  fact  that  the  employe  may 
have  been   auiltv  of  contributory  negUgence   shall   not 

(1028) 


§    577]  CONTBIBUTOET    NEGLIGENCE.  1029 

bar  a  recovery,  but  the  damages  shall  be  diminished  by 
the  jury  in  ])roportion  to  the  amount  of  negligence 
attributable  to  such  employe:  provided,  that  no  such 
employe  who  may  be  injured  or  killed  shall  be  held  to 
have  been  guilty  of  contributor}^  negligence  in  any  case 
where  the  violation  by  such  common  carrier  of  any 
statute  enacted  for  the  safety  of  employes  contributed 
to  the  injury  or  death  of  such  employe. 

§  576.  Contributory  Negligence  Defined.  Ton- 
tributory  negligence  under  the  Federal  Em|)loyers' 
Liability  Act  has  been  defined  by  the  United  States 
Supreme  Court  in  the  following  language:  ''Contrib- 
utor}' negligence  involves  the  motion  of  some  fault  or 
breach  of  duty  on  the  part  of  the  employe,  and  since  it 
is  ordinarily  his  duty  to  take  some  precaution  for  his 
own  safety  when  engaged  in  a  hazardous  occupation, 
contributory  negligence  is  sometimes  defined  as  a  fail- 
ure to  use  such  care  for  his  safety  as  ordinarily  pru- 
dent employes  in  similar  circumstances  would  use".^ 
In  another  case  before  the  Supreme  Court  of  the  United 
States,  the  following  definition  of  contributory  negli- 
gence was  approved:  "Contributory  negligence  is  the 
negligent  act  of  a  plaintiff  which,  concurring  and  co- 
operating with  the  negligent  act  of  a  defendant,  is  the 
proximate  cause  of  the  injury".' 

§  577.  Right  of  Recovery  under  Federal  Act  not 
Ban-ed  by  Contributory  Negligence.  When  an  em- 
ploye of  a  common  carrier  by  railroad  is  injured  or  kill- 
ed under  the  conditions  prescribed  in  the  federal  act, 
that  is,  while  the  carrier  is  engaged  and  while  the  ser- 
vant is  employed  by  it  in  interstate  commerce,  in  any 
action  for  damages  for  such  injuries  due  to  negligence, 
the  right  to  recover  cannot  be  defeated  by  showing  or 

1.     Seaboard   Air   Line   R.   Co.  2.      Norfolk   &    W.    R.    Co.    v. 

y.    Horton,   233    U.    S.    492,   58    L.  Earnest,  229  U.  S.  114.  57  L.  Ed. 

Ed.    1062.    34    Sup.   Ct.    635,   8   N.  1096.    33    Sup.    Ct.    654,    Ann   Cas. 

C.   C.   A.    834,   L.    R.   A.   1915C   1,  1914C   172. 
Ann.  Cas.  1915B  475. 


1030 


Injuries  to  Interstate  Employes. 


[§  577 


proving  that  the   employe's  negligence   contributed   in 
any  degree  to  his  injuries.^    In  this  respect  the  statute 


3.  United  States.  Kansas  City 
Southern  R.  Co.  v.  Jones,  241  U. 
S.  181,  60  L.  Ed.  943.  36  Sup.  Ct. 
513;  Norfolk  Southern  R.  Co.  v. 
Ferebee,  238  U.  S.  269,  59  L.  Ed. 
1303.  35  Sup.  Ct.  781;  Seaboard 
Air  Line  R.  Co.  v.  Tilghman,  237 
U.  S.  499,  59  L.  Ed.  1069,  35  Sup. 
Ct.  653;  Norfolk  &  W.  R.  Co.  v. 
Earnest.  229  U.  S.  114,  57  L.  Ed. 
1096.  33  Sup.  Ct.  654,  Ann.  Cas. 
1914C  172:  Southern  R.  Co.  v. 
Mays,  152  C.  C.  A.  91,  239  Fed. 
41:  Pennsylvania  Co.  v.  Sheeley, 
137  C.  C.  A.  471,  221  Fed.  901. 

Alabama.     Louisville    &    N.   R. 

Co.  y.  Blankenship, Ala. -, 

74   So.   960;    Southern  Ry.   Co.  v. 

Fisher, Ala. ,  74  So.  580; 

Southern  R.  Co.  v.  Peters,  194  Ala. 
69    So.   611. 

Arizona.  Arizona  Eastern  R.  Co. 
V.  Bryan,  18  Ariz.  106,  157  Pac. 
376. 

Arkansas.  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Rodgers,  118  Ark. 
263,   176   S.  W.   696. 

California.  Smithson  v.  Atchi- 
son. T.  &  S.  F.  R.  Co.,  174  Cal. 
148,  162  Pac.   111. 

Connecticut.  Hubert  v.  New 
York.  N.  H.  &  H.  R.  Co.,  90  Conn. 
261,    96    Atl.    967. 

Georgia.      Southern    Ry.    Co.    v. 

Blackwell,  Ga.  App.  ,  93 

S.  E.  321;  Charleston  &  W.  C.  R. 
Co.  V.  Sylvester,  17  Ga.  App.  85, 
86  S.  E.  275:  Charleston  &  W.  C. 
R.  Co.  V.  Brown.  13  Ga.  App.  744, 
79  S.  E.  932;  Southern  R.  Co.  v. 
Hill.  139   Ga.  549,  77  S.  E.  803. 

Idaho.  Neil  v.  Idaho  &  W.  N. 
R.   R..   22   Idaho   74,   125   Pac.  331. 

Illinois.     Roberts  v.   Cleveland, 


C,  C.  &  St.  L.  R.  Co.,  279  111.  493, 
117  S.  E.  97. 

Indiana.    Grand  Trunk  Western 

Ry.  Co.  V.  Thrift  Trust  Co.,  

Ind.    App.    ,    115    N.    E.    685; 

Cincinnati,    H.    &    D.    R.    Co.    v. 

Gross,  Ind.  ,   114   N.  E. 

962;  Pittsburg,  C,  C.  &  St.  L.  R. 
Co.  V.  Farmers'  Trust  &  Savings 
Co.,  183   Ind.  287,   108  N.  E.   108. 

Iowa.  Kenyon  v.  Illinois  Cent. 
R.  Co.,  173  Iowa  484,  155  N.  W. 
810;  Byram  v.  Illinois  Cent.  R. 
Co..  172  Iowa  631,  154  N.  W.  1006. 

Kansas.  Saar  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  97  Kan.  441,  155  Pac. 
954;  Duggan  v.  Missouri  Pac.  R. 
Co.,  96  Kan.  249,  150  Pac.  557; 
Smith  V.  St.  Louis  &  S.  F.  R.  Co., 
95    Kan.    451,   148    Pac.   759. 

Kentucky.  Norfolk  &  W.  R.  Co. 
V.  Short's  Adm'r,  171  Ky.  647.  188 
S.  W.  786;  Chesapeake  &  O.  R. 
Co.  V.  Cooper,  168  Ky.  137,  181  S. 
W.  933;  Cincinnati,  N  O.  &  T.  P. 
R.  Co.  V.  Goode,  163  Ky.  60,  173 
S.  W.  329. 

Louisiana.  Jones  v.  Kansas 
City  Southern  R.  Co.,  137  L.  178, 
68  So.  401. 

Maryland.  Baltimore  &  0.  R.  Co. 
V.  Whitacre,  124  Md.  411,  92  Atl. 
1060. 

Minnesota.  Wiles  v.  Great  North- 
ern R.  Co.,  125  Minn.  348,  5  N.  C. 
C.  C.  A.  60,  147  N.  W.  427;  La 
Mere  v.  Railway  Transfer  Co.  of 
City  of  Minneapolis,  125  Minn.  159, 
145  N.  W.  1068;  McDonald  v.  Rail- 
way Transfer  Co.  of  City  of 
Minneapolis,  121  Minn  273,  141  N. 
W.  177. 

Missouri.  Kippenbrock  v.  Wa- 
bash R.  Co.,  270  Mo.  479,  194  S. 
W.  50;  Yoakuf  v.  Lusk,  Mo. 


^  577] 


Contributory   Negligence, 


1031 


is  a  radical  departure  from  tlie  common  law  doctrine.* 
In  all  actions  under  the  federal  act  the  employe's  con- 
tributory negligence  merely  diminishes  the  amount  of 
his  damages  except  in  cases  where  the  injury  is  due  to 
a  violation   of  federal   safety   statutes.^   "This   statute 


App.  ,  193  S.  W.  635;  Wins- 
low  V.  Missouri,  K.  &  T.  Ry.  Co. 
(Mo.  App.),  192  S.  W.  121;  Bright- 
well  V.  Lusk,  194  Mo.  App.  643, 
189  S.  W.  413;  Koukouris  v.  Union 
Pac.  R.  Co.,  193  Mo.  App.  495,  186 
S.  W.  545;  Cross  v.  Chicago,  B. 
&  Q.  R.  Co..  191  Mo.  App.  202, 
177  S.  W.  1127;  Fish  v.  Chicago. 
R.  I.  &  P.  R.  Co.,  263  Mo.  106,  8 
N.  C  C.  A.  538,  Ann.  Cas.  1916B 
147,  172  S.  W.  340;  Pankey  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  180 
Mo.  App.  185,  6  N.  C.  C.  A.  74. 
168   S.   W.  274. 

Nebraska.  HuxoU  v.  Union  Pac. 
R.  Co  ,  99  Neb.  170,  155  N.  W. 
900. 

New  York.  McAuliffe  v.  New 
York  Cent.  &  H.  River  R.  Co.,  172 
N.  Y.  App.  Div.  597,  158  N.  Y. 
Supp.  922;  Gee  v.  Lehigh  Valley 
R.  Co.,  163  N.  Y.  App.  Div.  274, 
148   N.   Y.   Supp.   882. 

North  Carolina.  Horton  v.  Sea- 
board Air  Line  R.  Co.,  169  N.  C. 
108,    85    S.    E.    218. 

North  Dakota.  Manaon  v.  Great 
Northern  R.  Co.,  31  N.  D.  643,  155 
N.   W.   32. 

Pennsylvania.  Falyk  v.  Penn- 
sylvania R.  Co..  256  Pa.  397,  100 
Atl.  961. 

Texas.     Gulf,  C  &  S.  F.  Ry.  Co. 

V.    Cooper,    Tex.    Civ.    App. 

,  191  S.  W.  579;  Kansas  City. 

M.   &   O.   Ry.   Co.   V.   Finke,  - — 

Tex.    Civ.    App.    ,    190    S.   W. 

1143;    Missouri,    K.   &  T.   Ry.  Co. 

v.  Pace,  Tex.  Civ.  App.  , 

184  S.  W.  1051;  Chicago,  R  I. 
&  G.  Ry.  Co.  V.   Cosio,  Tex. 


Civ.    App.    — ,    182    S.    W.    83; 

Texas  &  P.  Ry.  Co.  v.  White, 

Tex.    Civ.    App.   ,    177    S.    W. 

1185. 

Vermont.  Robie  v.  Boston  &  M. 
R.  R  ,  —  Vt.  ,  100  Atl.  925. 

Virginia.  Chesapeake  &  O.  R. 
Co.  V.  Meadows,  119  Va.  423,  89 
S.  E.  244. 

4.  Seaboard  Air  Line  Ry.  Co. 
V.  Tilghman.  237  U.  S.  499,  59  L. 
Ed.   1009,   35   Sup.  Ct.  653. 

If  the  defendant's  negligence 
proximately  caused  the  injury 
but  the  plaintiff  was  also  at 
fault,  his  damages  are  to  be  di- 
minished in  proportion  that  the 
gravity  of  his  own  fault  bears  to 
the  entire  causal  negligence  at- 
tributable   to    both.      O'Neill     v. 

Erie  R.  Co.,  App.  Div.  , 

169   N.  Y.   Supp.  1008. 

5.  United  States.  Grand  Trunk 
Western  R.  Co.  v.  Lindsay,  233 
U.  S.  42,  58  L.  Ed.  838,  34  Sup. 
Ct.  5.81,  Ann.  Cas.  1914C  168;  Nor- 
folk &  W.  R.  Co.  V.  Earnest.  229 
U.  S.  114,  57  L.  Ed.  1096.  33  Sup. 
Ct.  654,  Ann.  Cas.  1914C  172;  St. 
Louis  Merchants'  Bridge  Termi- 
nal R.  Co.  V.  Schuerman,  150  C  C. 
A.  203,  237  Fed.  1;  Southern  R. 
Co.  V.  Smith,  131  C.  C.  A.  238. 
214  Fed.  942:  Louisville  &  N.  R. 
Co.  V.  Wene.  121  C.  C.  A.  245.  202 
Fed.  887;  Cain  v.  Southern  Ry. 
Co.,  199  Fed.  211;  Colasurdo  v. 
Central  R.  R.  Co.  of  New  .Jersey, 
180  Fed.  832;  Kelly  v.  Great 
Northern   Ry.   Co.,    152   Fed.    211. 

Alabama.  Southern  Ry.  Co.  v. 
Fisher, Ala. ,  74  So.  580; 


1032 


Injueies  to  Interstate  Employes.        [§  577 


rejects  tlie  common  law  rule  and  adopts  another,  deemed 
more  reasonable,  by  declaring-  (sec.  3),  'the  fact  that 
the  employe  may  have  been  guilty  of  contributory  neg- 
lig-ence  shall  not  bar  a  recovery,  but  the  damages  shall 
be  diminished  by  the  jury  in  proportion  to  the  amount 
of  negligence  attributable  to  such  employe.'  This  is 
followed  by  a  proviso   to  the  effect  that   contributory 


Western  Ry.  of  Alabama  v.  Mays, 
197  Ala.   367,  72  So.  641. 

California.  Smithson  v.  Atchi- 
son, T.  &  S.  F.  R.  Co.,  174  Calif. 
148,    162    Pac.    111. 

Georgia.  Ivey  v.  Louisville  & 
N.  R.  Co.,  18  Ga.  App.  434,  89  S. 
E.  629;  Southern  R.  Co.  v.  Hill, 
139  Ga.  549,  77  S.  E.  803. 

Idaho.  Neil  v.  Idaho  &  W.  N. 
R.  R.,  22  Idaho  74,  125  Pac.  331. 

Indiana.      Cincinnati,    H.    &   D. 

R.   Co.   V.   Gross.  Ind.   . 

114  N.  E.  962. 

Kansas.  Duggan  v.  Missouri 
Pac.  R.  Co.,  96  Kan.  249,  isn  Pac. 
557. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Holloway's  Adm'r,  168  Ky. 
262,  181  S".  W.  1126;  Louisville 
&  N.  R.  Co.  V.  Henig's  Adm'x, 
162  Ky.  14,  171  S.  W.  853;  Nash- 
ville, C.  &  St.  L.  Ry.,  158  Ky.  88, 
164  S.  W.  310;  Nashville.  C.  & 
St.  L.  R.  Co.  V.  Banks,  156  Ky.  G09, 
161  S.  W.  554;  Ellis's  Adm'r.  v. 
Louisville,  H.  &  St.  L.  R.  Co  ,  155 
Ky.  745,  160  S.  W.  512. 

Maryland.  Baltimore  &  O.  R. 
R.  Co.  V.  Branson,  128  Md.  678, 
98    Atl.    225. 

Michigan.  Gaines  v.  Grand 
Trunk  Ry.  Co.  of  Canada,  193 
Mich.  398,  159  N.  W.  542;  Col- 
lins V.  Michigan  Cent.  R.  Co.,  193 
Mich.  303,  159  N.  W.  535. 

Minnesota.  McDonald  v.  Rail- 
way Transfer  Co.  of  Minneapolis, 
121  Minn.  273,  141  N.   W.  177 


MissourL    Dowell  v.  Wabash  Ry. 

Co.,   Mo.   App.   ,    190    S. 

W.   939;    Newkirk  v.   Pryor    (Mo. 
App.),   183    S.   W.    682. 

North  Carolina.  Tilghman  v.  Sea- 
board Air  Line  R.  Co  ,  167  N.  C. 
163,   8.-]   S.  E.  315,  1090. 

Oregon.  Chadwick  v.  Oregon- 
Washington  R.  &  Nav.  Co.,  74  Or. 
19,  144  Pac.  1165;  Pfeiffer  v.  Ore- 
gon-Washington R.  &  Nav.  Co.,  74 
Or.  307,  144  Pac.  7G2,  7  N.  C.  C. 
A.  685. 

South  Dakota.  Fletcher  v.  South 
Dakota  Cent.  R.  Co.,  36  S.  D.  401, 
155  N.  W.  3. 

Texas.     Chicago,  R.  I.  &  G.  Ry. 

Co.   V.    De  Bord,   Tex.   , 

192  S.  W.  767;   Missouri,  K.  &  T. 

Ry.  Co.  of  Texas  v.  Bunkley, 

Tex.  Civ.  App.—,  153  S.  W. 
937:   Atchison,  T.  &  S.  F.  Ry.  Co. 

V.  Tack,  Tex.  Civ.  App.  , 

130    S.    W.   596. 

Washington.  Fogarty  v.  North- 
ern Pac.  R.  Co.,  74  Wash.  397, 
133    Pac.    609. 

West  Virginia.  Culp  v.  Virgin- 
ian Ry.  Co.,  W.  Va.  ,  92 

S.  E.  236;  Easter  v.  Virginian  Ry. 
Co.,  16  W.  Va.  383,  11  N.  C.  C 
A.  101,  86  S.  E.  37. 

"Contributory  negligence  is  not 
a  bar  to  a  recovery  and  can  only 
be  considered  in  ascertaining  the 
extent  to  which  damages  are  to 
be  mitigated."  Southern  R.  Co.  v. 
Mayes,  152  C.  C.  A.  91,  239  Fed. 
41. 


§  57S]  CoNTRiHUTOHv    Xkgligknce.  1033 

iic^-li^cncc  on  tlic  pai't  of  IIk-  ciiiploxc  shall  not  Ix'  con- 
sidered for  aii>  1)1111  )<)s«'  wlici'e  the  carriei-'s  fault  con- 
sisted ill  liic  xiolation  of  a  statute — a  Federal  statute 
—enacted  for  tlie  safety  of  einijloyes  (see  Seahord  Air 
Line  v.  Horton,  233  U.  S.  492,  503);  hul  this  is  not  such 
a  case,  and  so  the  principal  i)rovision  is  tlie  one  to  be 
a])i)lied.  Tt  means,  and  can  only  mean,  as  this  court 
has  held,  that,  wliere  the  causal  ue^-li^-ence  is  attrib- 
utable partly  to  the  carrier  and  i)artly  to  the  injured  em- 
])loye,  he  shall  not  recover  full  damages,  but  only  a 
diminished  sum  bearing  the  same  relation  to  the  full 
damages  that  the  negligence  attributable  to  the  carrier 
bears  to  the  iK^gligence  attributable  to  l)otli."^ 

§  578.  Two  Theories  of  Comparative  Negligence 
Extant  in  United  States.  At  the  time  of  the  enactment 
of  the  I'ederal  Employers'  Liability  Act  there  were  two 
theories  concerning  comparative  negligence  extant  in 
tlie  United  States.  Under  one  the  ])laintiff  conld  re- 
cover if  his  negligence  was  slight  and  that  of  the  de- 
fendant was  gross  in  comparison,  but  if  the  ]ilaintiff 
was  gnilty  of  negligence  contributing  to  his  own  injury 
he  could  not  recover  unless  the  defendant's  negligence 
was  gross  in  comparison  with  that  of  the  plaintiff. 
Under  the  other  theory  of  comparative  negligence,  tlie 
negligence  of  both  tlie  i)laintiff  and  the  defendant  were 
to  be  compared,  not  for  the  pui^DOse  of  relieving  one  of 
liability  or  denying  the  other  a  right  to  recover,  but 
for  the  purpose  of  reducing  the  amount  of  plaintiff's 
damages  according  to  the  extent  which  his  own  negli- 
gence contrilnited  to  the  injury.'  I'nder  the  construc- 
tion wliich  the  national  Supreme  Court  has  placed  upon 
the  federal  act,  the  second  theory  was  adopted  as  to  all 
interstate  emi)loyes.''  The  difference  between  the  two 
theories  of  contributory  negligence  was  thus  pointed  out 

6.  Seaboard  Air  Line  Ry.  Co.  8.  United  States.  Seaboard  Air 
V.  Tilghman,  237  U.  S.  499,  59  L.  Line  Ry.  v.  Tilghman.  237  U.  S. 
Ed.   1069,  35   Sup.  Ct.   653.  499,    59    L.    Ed.   1069,   35   Sup.   Ct. 

7.  Waina  v.  Pennsylvania  Co.,  653;  Norfolk  &  W.  R.  Co.  v.  Ear- 
251   Pa.   213,  96   Atl.  4(n.  nost.  229  U.  S.  114.  57  L.  Ed.  1096. 


103-i  IxjuEiEs  TO  Interstate  Employes.        [§  578 

by  the  national  Supreme  Court:  "While  there  are 
several  ditferences  bet^Yeen  the  state  act  and  the  act  of 
Congress,  the  only  difference  having  a  present  bearing  is 
one  relating  to  contributory  negligence.  The  state  act 
declares  that  in  cases  where  the  employe's  negligence  is 
slight  and  that  of  the  employer  is  gross  in  comparison, 
the  former's  negligence  shall  not  bar  a  recovery,  but 
shall  operate  to  diminish  the  damages  proportionally. 
In  other  cases  contributoiy  negligence  remains  a  bar  as 
at  common  law.  Comp.  Stat.,  1907,  sec.  2803b;  Cobbey's 
Ann.  Stat.  1911,  sec.  10592.  The  act  of  Congress,  on  the 
other  hand,  declares  that  the  emj^loye's  negligence  shall 
not  bar  a  recovery  in  any  case,  but  shall  oi^erate  to  di- 
minish the  damages  proportionally  in  all  cases,  save 
those  of  a  designated  class,  of  which  this  is  not  one. 
Thus,  it  will  be  seen  that  the  state  act  is  more  favorable 
to  the  employer  than  is  the  act  of  Congress.  The  in- 
structions to  the  jury  followed  the  state  act  and  con- 
sequently were  more  favorable  to  the  company  than  they 
would  have  been  had  they  followed  the  act  of  Congress. 
To  illustrate,  under  the  instructions  given  a  finding  that 
the  interstate 's  injuries  were  caused  by  concurring  negli- 
gence of  the  company  and  himself  and  that  his  negli- 
gence was  more  than  slight  and  the  company's  less  than 
gross  must  have  resulted  in  a  verdict  for  the  company, 
while  under  instructions  following  the  act  of  Congress 
such  a  finding  must  have  resulted  in  a  verdict  for  the 
p)laintiffs  with  the  damages  proportionally  diminished."^ 

§  579.     Purpose  of  Congress  in  Modifying  Common 
Law  Rule  of  Contributory  Negligence.     The  purpose  of 

33   Sup.  Ct.  654,  Ann.  Cas.  1914C  Michigan.  Walsh  v.  Lake  Shore 

172;    Shanley   v.    Philadelphia    &  &   M.    S.   R.    Co.,    185    Mich.    177, 

R.  R.  Co.,   221  Fed.  1012.  151  N.  W.  754. 

Alabama.     Southern  Ry.  Co.  v.  New  Jersey.    West  Jersey  Trust 

Fisher,     Ala.     ,    74     So.  Co.  v.  Philadelphia  R.  Co.,   88  N. 

580.  J.   L.   102,    95  Atl.   753. 

Kentucky.     Louisville   &   N.   R.  9.     Chicago,   R.   T.   &   P.  R.  Co. 

Co.  V.  JioUoway's  Adm'r,  163  Ky.  v.    Wright,    239   U.    S.    548,   60    L. 

125,    173    S.   W.    343.  Ed.    431,    36    Sup.    Ct.   185. 


§  579]  Contributory   Nhgligence.  1035 

CoTif^rcss   in   modifying   tlio  common   law   rule   of   con- 
tributory no^TiKonce  by  tbo  enaclnioni  of  Section  3  of  the 
act  was  thus  stated  in  the  report  of  the  judiciary  com- 
mit too  of  the  House  of  R('])resentativcs:    ''Section  3  is  a 
modilication  of  the  common-law  rule  of  contril)utory  neg- 
ligence.  It  does  not  abolish  the  law.   Under  its  provisions 
contributo7-y  negligence  still  bars  a  recovery  for  ])ersonal 
injury  so  far  as  the  injury  is  due  to  the  contributory 
negligence  of  the  employe,  but  entitles  the  employe  to 
recover  for  the  injury  so  far  as  it  is  due  to  the  negligence 
of   the  employer.     It  differs  from   the   Act   passed   by 
Congress  in  June,  1906,  on  this  point,  in  this:    That  law 
pi-()vided   that   contributory   negligence  did    not   bar   a 
recovery  if  the  negligence  of  the  employe  was  slight  and 
that  of  the  employer  was  gross  in  comparison.    That  law 
modified  the  common-law  rule  of  contributory  negligence 
and   also  contained  a  modification   of  the   common-law 
doctrine. of  comparative  negligence.     We  are  unable  to 
see  any  justification  whatever  in  the  common-law  doc- 
trine of  comparative  negligence  anywhere.    It  is  the  only 
rule  of  negligence  that  permits  an  employe  to  recover 
damages  for  injury  to  which  his  own  negligence  con- 
tributed.    Comparative  negligence  is  absolutely  wrong 
in  principle,  for  the  reason  that  it  permits  the  employe 
to  recover  full  damages  for  injury,  even  though  his  own 
negligence  contributed  to  it.    It  is  true,  as  the  law  states 
it,  he  can  only  recover  damages  when  his  contributory 
negligence  is  slight  and  that  of  the  employer  is  gross  in 
comparison.     But  that  rule  does  not  undertake  to  di- 
minish the  verdict  in  proportion  to  the  negligence  of  the 
em]-)loye.    This  may  be  said  in  behalf  of  the  doctrine  of 
contrii)utory  negligence  in  its  common-law  purity,  and 
it  is  the  only  reason,  so  far  as  we  know,  that  has  ever 
been  assigned  for  its  existence:     It  tends  to  make  the 
employe  exercise  a  higher  degree  of  care  for  his  safety. 
If  that  is  a  good  reason  for  the  existence  of  that  iiile, 
then  we  believe  that  Section  3  of  this  bill  is  a  very  great 
improvement  on   that  doctrine,   for   the   reason  that   it 
imposes  the  burden  of  the  employer's  negligence  on  the 
employer,  and  he  will  thus  be  induced  to  exercise  higher 


1036  Injuries  to  Interstate  Employes,        [§  579 

care  in  the  selection  of  bis  employes,  and  in  other  ways, 
for  the  safety  of  persons  in  his  employment.  If  the  law 
imposes  on  the  employe  the  burden  of  his  own  neglig-ence, 
that  is  certainly  snffcient,  and  that  is  what  this  section 
seeks  to  do,  and  it  also  seeks  to  impose  upon  the  em 
ployer  the  burden  of  his  neglii>'ence.  It  provides  that 
contributory  negligence  shall  uot  bar  a  recovery  for 
injury  due  to  the  negligence  of  the  emi)loyer.  It  pro- 
vides that  the  jury  shall  diminish  tlie  damages  suffered 
by  the  injured  employe  in  proportion  to  the  amount  of 
negligence  attril)utable  to  such  employe.  It  is  urged  by 
some  that  such  a  provision  is  impracticable  of  adminis- 
tration and  that  juries  will  not  divide  the  damages  in 
accordance  with  the  negligence  committed  by  each. 
The  same  objection  can  be  urged  against  the  provision 
of  the  bill  passed  by  Congress  in  1906,  which  provided 
that  only  slight  negligence  should  not  bar  a  recovery, 
but  that  the  jury  should  diminish  damages  in  proportion 
to  such  slight  negligence.  Under  that  provision  the 
jury  would  have  the  same  difficulty,  if  any,  in  ap- 
l)ortioning  the  damages  according  to  the  negligence  of 
each  party.  We  submit,  further,  that  this  section  of  the 
bill  is  free  from  the  very  unjust  principle  contained  in 
the  common-law  doctrine  of  comparative  negligence 
which  allowed  the  employe  to  recover  full  damages  for 
injury  to  which  his  own  negligence  contributed  in  some 
degree.  It  is  not  a  just  criticism  of  a  law,  conceding  the 
righteousness  of  its  principles,  to  say  that  it  is  im- 
practicable of  administration.  We  submit  that  the 
principle  in  this  section  is  ideal  justice,  against  which 
no  fair  argument  can  be  made.  It  is  better  that  legis- 
latures pass  just  and  fair  laws,  even  though  they  may  be 
difficult  of  administration  by  the  courts,  rather  than  to 
pass  unjust  and  unfair  laws  because  they  may  be  more 
easily  administered  by  the  courts.  Courts  ought  not  to 
be  compelled  to  administer  the  common-law  doctrine 
of  contributory  negligence,  which  ])uts  upon  the  employe 
the  whole  burden  of  negligence,  even  though  his  negli- 
gence was  slight  and  that  of  the  emi)loyer  was  gross. 
That  law  might  to  some  extent  induce  higher  care  on 


(§    579]  CONTIUBUTORY     NKdLKiKXCK.  1037 

the  i)ail   of  the  omi)l()yf',  hiil    in  the  same  dej<ree,  and 
for  tlie   same  reason,   it    indnces  the  em]jhjyer   to   liave 
less  re,u-ard  and  less  caic  I'oi'  llie  safety  of  his  employes. 
It  is  ur^•ed  tliat  juries  nnder  this  law  will  wholly  ij<nore 
the  ne<;li<;('nc('  conimilted  hy  the  employe  and  ehar^ce  all 
the  injury  to  the  ne^li,<;-enee  of  the  employer.      We  do    not 
believe  that  this  will  he  the  result  of  Ihe  administration 
of  this  section.     We  believe  it   will   ai)peal   to  juries  as 
eminently  just    and   they    will    undertake   to   enforee    it 
literally  to  the  best  of  their  skill.     If  juries  under  the 
common-law  rule  of  contributory  negligence  have  been 
dis])osed  to  assess  damages  in  spite  of  the  fact  that  the 
defendant   contributed  to  the  injury  by  his  own  negli- 
gence,  it   may  be  said   that   the  juiy  recognizes  the  in- 
justice of  the  law  and  undertakes  to  correct  it  by  what 
they  consider  a  just   and   righteous   verdict.     There   is 
nothing  in  tliis  law  that  will  induce  such  a  sentiment  in 
the  minds  of  the  jury,  but  it  will  a])])eal  to  them  as  the 
true  i)rincii)le,  and,  in  our  judgment,  they  will   seek  to 
apply  it  fairly  in  the  courts.  Beach,  in  his  work  on  con- 
tributory negligence,  page  136,  comments  on  the  law  as 
provided  in  this  section  as  follows:    "Much  may  be  said 
in  favor  of  the  rule  which  counts  the  plaintiff's  negli- 
gence in  mitigation  of  the  damages  in  those  cases  which 
frequently  arise,  wherein,  on  one  hand,  a  real  injury  has 
been  suffered  by  the  plaintiff'  by  reason  of  the  culpable 
negligence  of  the  defendant,  and  yet,  where,  on  tlie  other 
hand,  the  i)laintiff"'s  conduct  was  such  as  to  some  extent 
contribute  to  the  injury,  })ut  in  so  small  a  degree    that     to 
impose  upon  him  the  entire  loss  seems  not  to  take  a  just 
account  of  the  defendant's  negligence.     In  those  cases, 
wdiich   may  be  denominated   'hard   cases,'   the   Georgia 
and  Tennessee  rule  in  mitigation   of  damages  without 
necessarily  sacrificing  the  principle  upon  which  the  law 
as   to   contributory   negligence   rests   is   a    rule   against 
wdiich,  in  resi)ect  of  justice  and  humanity,  nothing  can  be 
said.     Where  the  severity  of  the  general  rule  might  re- 
fuse the  plaintiff  any  remedy  whatever,  as  the  sheer  in- 
justice  of   the    rule,    as   laid    down    in    Davis   v.    Maim, 
would  impose  the  whole  liability  ui>oii  the  defendant,  it 


1038  Injuries  to  Interstate  Employes.        [§  579 

is  quite  possible  to  conceive  a  case  where  the  application 
of  the  rule  which  mitigates  the  damages  in  proportion  to 
the  plaintiff's  misconduct,  but  does  not  decline  to  impose 
them  at  all,  would  work  substantial  justice  between  the 
parties.'  Shearman  and  Eedfield  on  the  Law  of  Negli- 
gence fifth  edition,  page  158,  in  speaking  of  this  rule, 
say:  'This  is  substantially  an  adoption  of  the  admiralty 
rule,  which  is  certainly  nearer  ideal  justice,  if  juries 
could  be  trusted  to  act  upon  it.'  The  United  States  has 
adhered  much  closer  to  the  common-law  doctrine  of  con- 
tributory negligence  than  the  leading  countries  of 
Europe.  The  laws  of  England,  Germany,  and  Italy  go 
much  further  to  discharge  the  employe  from  the  re- 
sponsibility of  his  own  act  than  does  the  common-law 
doctrine  of  comparative  negligence.  The  laws  of  France, 
Switzerland,  and  Eussia  are  in  practical  accord  with  the 
provisions  of  section  3  of  this  bill.  The  rule  provided  for 
in  this  section  is  recognized  to  some  extent  in  this 
country.  Maryland  and  some  of  the  other  States  have 
passed  statutes  seeking  to  divide  the  responsibility  where 
both  parties  are  guilty  of  negligence.  The  provisions  of 
this  section  are  certainly  just.  What  can  be  more  fair 
than  that  each  party  shall  suffer  the  consequences  of  his 
own  carelessness  ?  It  certainly  appeals  more  strongly  to 
the  fair  mind  than  the  proposition  that  the  employe  shall 
have  no  redress  whatever,  even  though  his  injury  is  due 
mainly  to  the  negligence  of  another.  As  a  consequence 
of  this  legislation,  we  believe  there  will  be  fewer 
accidents.  By  the  responsibility  imposed,  both  parties 
will  be  induced  to  the  exercise  of  greater  diligence,  and 
as  a  result  the  public  will  travel  and  property  will  be 
transported  in  greater  safety." 

§  580.  Apportionment  of  Damages  under  Federal 
Act  Different  from  Georgia  Statute.  Even  prior  to  the 
passage  of  the  Federal  Employers'  Liability  Act,  a  few 
states  had,  by  statutory  enactment,  adopted  the  doctrine 
of  comparative  negligence  as  distinguished  from  con- 
tributory negligence.  The  Georgia  statute  respecting  the 
apportionment  of  damages  has  been  construed  to  mean 


<§,    582]  CONTKIBUTORY     NEGLIGENCE.  1039 

that  where  the  injury  is  tlie  result  of  mutual  negligence 
there  can  be  no  recovery  unless  the  person  inflicting  the 
injury  is  more  in  fault  than  the  one  who  is  injured. 
But  such  rule  is  not  to  be  ai)})lied  in  the  apportionment 
of  damages  under  the  federal  act  for  if  the  carrier's 
negligence  caused  the  injury  in  part,  the  contributory 
negligence  of  the  employe  does  not  defeat  the  action  no 
matter  if  the  carrier  is  less  in  fault  than  the  emi)loye." 

§  581.  Employe's  Contributory  Negligence  to  Re- 
duce Damages  must  Proximately  Contribute  to  Injury. 
The  damages  recoverable  by  an  employe  for  injuries  due 
to  the  negligence  of  a  common  carrier  cannot  be  reduced 
by  reason  of  any  slight  negligence  on  the  part  of  the 
employe.  Before  the  damages  can  be  reduced  the  con- 
tributoiy  negligence  of  the  employe  must  directly  and 
proximately  contribute  to  the  injury.  In  other  words,  the 
negligence  of  the  employe,  in  order  to  reduce  the 
damages,  must  be  causaP^  and  not  the  occasion,  that  is, 
that  which  incidentally  brings  to  pass  an  event  without 
being  the  efficient  cause  of  an  injury." 

§  582.  Gross  Negligence  of  Plaintiff  and  Slight 
Negligence  of  Defendant  Cannot  Defeat  Recovery. 
LTnder  the  federal  act  if  the  carrier  is  negligent  in  any 
degree  and  such  negligence  contributes  as  a  proximate 
cause  to  the  injury,  plaintiff's  right  to  recover  cannot  be 
defeated  although  his  negligence  might  have  been  gross 
and  the  negligence  of  the  defendant  comparable  there- 
with slight.^^  And  a  demurrer  to  the  evidence  or  a  non- 

10.  Southern  R.  Co.  v.  Hill,  139  &  S.  F.  R.  Co.,  97  Kan.  455,  155 
Ga.   549,   77   S.   E.   803.  Pac.  788. 

11.  United  States.  Illinois  Cent.  Kentucky.  Davis'  Adm'r  v.  Cin- 
R.  Co.  V.  Skaggs,  240  U.  S.  66,  60  ciunati,  N.  O.  &  T.  P  R  Co  172 
L.  Ed.  528,  36  Sup.  Ct.  249;  Illi-  ^y.  55,  188  S.  W.  1061.  Norfolk 
nois   Cent.   R.   Co.  v.   Porter,   207 


&  W.  R.  Co.  V.  Short's  Adm'r,  171 
Ky.  647,  188  S  W  786. 


Fed.    311. 

Alabama.      Southern   R.    Co.   v. 

Peters,  194  Ala.  94,  69  So.  611.  ^2.     Fletcher  v.    South    Dakota 

Georgia.     Macon,  D.  &  S.  R.  Co.  Cent.    R.    Co.,    36    S.    D.    401,    155 

V.  Robinson,  19  Ga.  App.  370,  91  N.  W.  3. 

S.    E.  492.  13.    United  States.    Southern  R. 

Kansas.     Pyles  v.   Atchison,   T.  Co.  v.  Mays,  152  C.  C.  A.  91,  239 


10-tO 


Injuries  to  Interstate  Employes.        [§  582 


suit  cannot  in  any  ease  under  the  federal  act  l)e  o-iven  or 
sustained  on  the  ground  of  phiintiff's  contributory 
negligence.'*  Judge  Knappen,  speaking  for  the  Federal 
Circuit  Court  of  Appeals  in  Pennsylvania  Co.  v.  Cole, 
cited  supra,  said:  "But  the  Employers'  Liability  Act 
expressly  abrogates  the  common  law  rule  under  which 
action  was  barred  by  the  negligence  of  the  plaintiff 
proximately  contributing  to  the  accident  and  substitutes 
therefor  the  rule  of  comparative  negligence.  Under  this 
act,  no  degree  of  negligence  on  the  part  of  the  plaintiif , 
however  gross  or  proximate,  can,  as  a  matter  of  law,  bar 
recoverv. ' ' 


Fed.  41;  Pennsylvania  Co.  v. 
Sheeley,  137  C.  C.  A.  471,  221 
Fed.  901;  New  York,  C.  &  St.  L. 
R.  Co.  V.  Niebel,  131  C.  C.  A.  248, 
214  Fed.  952;  Pennsylvania  Co. 
V.  Cole,  131  C.  C.  A.  244,  214  Fed. 
948;  Louisville  &  N.  R.  Co.  v. 
Lankford,  126  C.  C.  A.  247,  209 
Fed.  321;  Louisville  &  N.  R.  Co. 
V.  Wene,  121  C.  C.  A.  245,  20a 
Fed.  887;  Chicago  Great  Western 
R.  Co.  V.  McCormick,  118  C.  C.  A. 
527,  200  Fed.  375,  47  L.  R.  A.  (N. 
S.)    18. 

Alabama.  Western  Ry.  of  Ala. 
V.  Mays,  197  Ala.  367,  72  So.  641; 
Louisville  &  N.  R.  Co.  v.  Flem- 
ing, 194  Ala.  51,  69  So.  125. 

Georgia.  Louisville  &  N.  R.  Co. 
v.  Paschal,  145  Ga.   521,  89  S.  E. 

620. 

Kentucky.  Lexington  &  E.  R. 
Co.  V.  Smith's  Adm'r,  172  Ky.  117, 
188  S.  W.  1091. 

Maryland.  Baltimore  &  0.  R. 
Co.  v.  Whitacre,  124  Md.  411,  92 
Atl.  1060. 

Minnesota.  Knapp  v.  Great 
Northern  R.  Co.,  130  Minn.  405, 
153   N.   W.   848. 

Missouri.  Brightwell  v.  Lusk, 
194  Mo.  App.  643,  189  S.  W.  413; 


Koukouris  v.  Union  Pac.  R.  Co., 
193  Mo.  App.  495,  186  S.  W.  545; 
Newkirk  v.  Pryor  (Mo.  App  ),  183 
S.  W.   682;    Noel  v.  Quincy,  0.   & 

K.  C.  R.  Co.,  ■ Mo.  App.  , 

182    S.   W.    787. 

North  Dakota.  Manson  v.  Great 
Northern  R.  Co.,  31  N.  D.  643,  155 
N.  W.  32. 

South  Dakota.  Fletcher  v.  South 
Dakota  Cent.  R.  Co.,  36  S.  D.  401, 
155  N.  W.  3. 

Vermont.  Lynch's  Adm'r  v.  Cen- 
tral Vermont  R.  Co.,  89  Vt.  363, 
95  Atl.  683. 

Virginia.  Chesapeake  &  0.  R. 
Co.  V.  Meadows,  119  Va.  33,  89  S. 

E.  244. 

Washington.  Anest  v.  Columbia 
&  P.  S.  R.  Co.,  89  Wash.  609,  154 
Pac.    1100. 

West.  Virginia.  Gulp  v.  Virgin- 
ian Ry.  Co.,  W.  Va.  ,  92 

S.    E.    236. 

14.  Louisville  &  N.  R.  Co.  v. 
Wene,  121  C.  C.  A.  245,  202  Fed. 
887;  Sandidge  v.  Atchison,  T.  &  S. 

F.  R.  Co,  113  C.  C.  A.  653,  193 
Fed.  867;  Horton  v.  Seaboard  Air 
Line  R.  Co.,  157  N.  C.  146,  72  S. 
E.  958. 


'^i  584]  Contributory   Negligence.  1041 

§  583.  When  Defendant's  Act  is  no  Part  of  Causa- 
tion, Plaintiff  Cannot  Recover.  On  tlic  otiicr  hand  if  the 
plaintiff's  act  is  tlie  sole  cause  of  his  injury  without  any 
act  on  tlio  part  of  the  defendant  contributing  as  a  part 
of  tlie  causation,  tliorc  can  Ix'  no  recovery  under  tlie 
federal  act/''  AVliethei-  niidcf  the  facts  of  a  pailicuhii" 
case  the  ])laintiff's  ue^liiiciicc  was  tlic  sole  cause  of  his 
injury  or  whether  tlie  ii<'<^li^ence  of  the  defendant  con- 
tributed as  a  part  of  the  causation,  has  already  been 
raised  in  cases  under  tlie  federal  act  and  it  is  fre(piently 
a  difficult  question  to  solve.  Such  questions  will  no 
doubt  arise  in  the  future  in  other  cases  for  the  icason 
that  if  Ihe  ])laintiff's  neg'ligence  was  the  sole  cause  of 
his  injury  there  can  be  no  recover^y,  but  if  the  de- 
fendant's ne,ij;ligence  contributes  as  a  proxinuite  cause, 
the  plaintiff  can  recover  no  matter  how  gross  his  negli- 
gence may  be.  In  two  cases,  Pankey  v.  Kaili'oad  and 
p]llis  V.  Kailroad,  cited  supra,  the  courts  denied  a  re- 
covery under  the  federal  act  for  the  reason  that  under 
the  facts  the  ])laintiff's  act  was  the  sole  cause  of  his  in- 
jury. On  the  other  hand  courts  have  denied  the  ap- 
plication of  the  same  principle  under  the  facts  and  held 
the  defendant's  act  was  a  part  of  the  causation." 

§  584.  How  Damages  Apportioned  When  Employe 
is  Guilty  of  Contributory  Negligene.  AVhere  the  negli- 
gence which   caused  the  injui'v  or  death   of  an  oin])loye 

15.    United  States.  Great  North-  Missouri.      Pankey  v.   Atchison, 

ern  R.  Co.  v.  Wiles,  240  U.  S.  444,  T.  &   S.   F.  R.  Co.,   180  Mo.  App. 

60    L.   Ed.   732,   36   Sup.   Ct.    406;  185,   6  N.  C.  C.  A.   74.   168  S.  W. 

Grand   Trunk   Western  R.   Co.    v.  274. 

Lindsay,  233  U.   S.  42,  58  L.   Ed.  Oregon.  Pfeiffcr  v.  Oregon-Wash. 

838,    34    Sup.    Ct     581,    Ann.    Cas.  ington  R    &  Nav.  Co.,  74  Ore.  307. 

1914C  168.  7   N.   C.   C.    A.    685,   144    Pac.   762. 

Georgia.     LouisviUe  &  N.  R.  Co.  Virginia.     Chesapeake    W.     Ry. 

V.    Kemp,    140    Ga.    657,    79    S.    E.  Co.  v.  Shiflett's  Adm'.x,  118  Va.  63. 

558.  86  S.   E.  860. 

Kentucky.    Norfolk  &  W.  R.  Co.  16.        Spokane    &    I.    E     R.    Co. 

V.  Short's  Adm'r,  171  Ky.  647,  188  v.  Campbell,  133  C.  C.  A.  370.  217 

S.  W.  786;   Ellis'  Adm'r  v.  Louis-  Fed.  518;  New  York,  C.  &  St.  L.  R. 

ville,  H.  &  St.  L.  R.  Co.,  155  Ky.  Co.    v.    Niebel,    131   C.    C.   A.   248. 

745,    160    S.    W.    512.  214    Fed.    952;    Pennsylvania    Co. 


1042 


Injuries  to  Interstate  Employes.        [§  584 


is  partly  attributable  to  the  employe  himself  and  partly 
attributable  to  the  carrier,  the  plaintiff  cannot  recover 
full  damages  but  only  such  a  proportional  amount 
bearing  the  same  relation  to  the  full  amount  as  the  negli- 
gence attributable  to  the  carrier  bears  to  the  entire  negli- 
gence   attributable    to    both."     Justice    Van   Daventer, 


V.  Cole.  131  C.  C.  A.  244,  214  Fed. 
948;  Ross  v.  St.  Louis  &  S.  F. 
R.  Co.,  93  Kan.  517,  7  N.  C.  C.  A. 
737,  144  Pac.  844;  Louisville  & 
N.  R.  Co.  V.  Heinig's  Adm'x,  162 
Ky.  14.  171  S.  W.  853. 

17.  United  States.  Illinois  Cent 
R.  Co.  V.  Skaggs,  240  U.  S.  66, 
60  L.  Ed.  528,  36  Sup.  Ct.  249; 
Chicago,  R.  I.  &  P.  R.  Co.  v. 
Wright,  239  U.  S.  548,  60  L.  Ed. 
431.  36  Sup.  Ct.  185;  Seaboard 
Air  Line  Ry.  Co.  v.  Tilghman,  237 
U.  S.  499,  59  L.  Ed.  1069.  35  Sup. 
Ct.  653;  Norfolk  &  W.  R.  Co.  v. 
Earnest,  229  U.  S.  114,  57  L.  Ed. 
1096,  33  Sup.  Ct.  654,  3  N.  C.  C. 
A.  806,  Ann.  Cas.  1914C  172; 
Shanley  v.  Philadelphia  &  R.  R. 
Co.,  221  Fed.  1012. 

Alabama.     Southern  Ry.  Co.  v. 

Fisher,  —  Ala.  74  So.  580 

Southern  R.  Co.  v.  Peters,  194  Ala. 
94,   69    So.   611. 

Arkansas.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  V.  Rodgers,  118  Ark.  263, 
176  S.  W.  696;  St.  Louis  South- 
western R.  Co.  V.  Anderson,  117 
Ark.  41,  173  S.  W.  834. 

Arizona.  Arizona  Eastern  R. 
Co.  V.  Bryan,  18  Ariz.  106,  157 
Pac.  376. 

Georgia.  Ivey  v.  I.iOuisville  & 
N.  R.  Co.,  18  Ga.  App.  434,  89  S.  E. 
629. 

Indiana.    Cincinnati,  H.  &  D.  R. 

Co.  V.  Gross,  Ind.  ,  114 

N.  E.  962. 

Kentucky.  Louisville  &  N.  R. 
Co.  V.  Thomas'  Adm'r,  170  Ky. 
145,   185   S.   W.  840;    Louisville  & 


N.  R.  Co.  V.  Holloway's  Adm'r 
168  Ky.  262,  181  S.  W.  1126;  Louis- 
ville &  N.  R.  Co.  V.  Holloway's 
Adm'r,  163  Ky.  125,  173  S.  W.  343; 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
V.  Goode,  163  Ky.  60,  173  S.  W. 
329;  Louisville  &  N.  R.  Co.  v. 
Heinig's  Adm'x,  162  Ky.  14,  171 
S.  W.  853;  Nashville,  C.  &  St.  L. 
R.  Co.  V.  Henry,  158  Ky.  88,  164 

S.  W.  310;  Nashville,  C.  &  St.  L. 
R.  Co.  V.  Banks.  156  Ky.  609,  161 
S.  W.  554. 

Maryland.  Baltimore  &  O.  R. 
Co.  V.  Branson,  128  Md.  678,  98 
Atl.    225, 

Michigan.  Collins  v.  Michigan 
Cent.  R.  Co.,  193  Mich.  303,  159 
N.  W.  535;  Walsh  v.  Lake  Shore 
&  M.  S.  R.  Co.,  185  Mich.  177, 
151   N.   W.    754. 

Missouri.  Dowell  v.  Wabash  Ry. 

Co.,   ■   Mo.    App.   ,    190    S. 

W.     939;      Blankenbaker     v.     St. 

Louis    &   S.   F.    R.    Co.,   Mo. 

,   187  S.  W.  840;    Newkirk  v. 

Pryor  (Mo.  App  ),  183  S.  W.  682; 
Cross  V.  Chicago,  B.  &  Q.  R.  Co., 
191  Mo.  App.  202,  177  S.  W.  1127; 
Fish  V.  Chicago,  R.  I.  &  P.  R.  Co., 
263  Mo.  106.  8  N.  C.  C.  A.  538, 
Ann.  Cas.  1916B  147,  172  S.  W. 
340. 

New  Jersey.  West  Jersey  Trust 
Co.  V.  Philadelphia  &  R.  R.  Co., 
88  N.  J.  L.   102,  95  Atl.  753. 

New  York.  McAuliffe  v.  New 
York  Cent.  &  H.  River  R.  Co.,  172 
N.  Y.  App.  Div.  597,  158  N.  Y. 
Supp.  922. 


<§    585]  CONTKIBUTORY     NEGLIGENCE.  1043 

speaking  Tor  the  Supreme  Court  in  tlie  Earnest  case  cited, 
said:  "Tlie  statutory  direction  tliat  the  diminution  sliall 
be  'in  proportion  to  tlie  amount  of  negligence  attributable 
to  such  employe'  means,  and  can  only  mean,  that,  where 
the  causal  negligence  is  partly  attributable  to  him  and 
partly  to  the  carrier,  he  shall  not  recover  full  damages, 
l)nt  only  a  pro])oi'tional  amount  bearing  the  same  relation 
to  the  full  amount  as  the  negligence  attributable  to  the 
carrier  bears  to  the  entire  negligence  attributable  to 
both;  the  pur])ose  being  to  abrogate  the  common-law  rule 
completely  exonerating  the  carrier  from  liability  in  such 
a  case,  and  to  substitute  a  new  rule,  confining  the  ex- 
oneration to  a  proportional  part  of  the  damages,  corre- 
sponding to  the  amount  of  negligence  attributable  to 
the  employe." 

§  585.  When  Duty  of  Trial  Court  to  Instruct  on 
Contributory  Negligence  Arises  under  Federal  Act.  If 
there  is  evidence  sufficient  for  the  issue  of  contributory 
negligence  to  be  submitted  to  the  jury  it  is  error  for  a 
trial  court  to  refuse  an  instruction  on  its  eflfect  in  re- 
ducing the  damages  unless  liability  is  based  upon  a 
federal  statute  enacted  for  the  safety  of  employes." 
Thus,  in  the  case  cited,  it  was  held  that  the  trial  court 
erred  in  refusing  to  .give  the  following  instniction  to  the 
jury:  "If  you  shall  find  that  the  plaintiff  was  guilty  of 
negligence  which  contributed  to  cause  his  injury,  and 
that  the  defendant  was  also  guilty  of  negligence  which 
contributed,  with  the  negligence  of  the  plaintiff,  to  cause 
injury  to  him,  then  it  is  your  duty  to  diminish  the 
amount  which,  in  your  opinion,  under  the  evidence,  you 
believe  that  the  plaintiff  herein  mil  be  entitled  to  recover 
by  reason  of  the  negligence  of  the  defendant,  by  an 
amount  in  proportion  to  the  amount  of  negligence  at- 
tributable to  the  plaintiff."  But  if  there  is  no  evidence 
of  contributory  negligence  sufficient  to  be  submitted  to 

Texas.     Gulf.  C.  &  S.  F.  Ry.  Co.  IS.     Snyder  v.   Great  Northern 

V.    Cooper,    Tex.    Civ.    App.       R.    Co.,    88    Wash.    949,    152    Pac. 

,   191   S.   W.  579.  703. 


1044  Injukies   to  Interstate  Employes.         [§  585 

the    jury,    no    iiistnietion     slioiild  be    given    upon    the 
subject/" 

§  586.  Method  of  Instructing  the  Jury  When  there 
is  Evidence  of  Contributory  Negligence.  In  actions 
under  the  federal  act  predicating  a  recovery  upon  some 
act  of  negligence  other  than  the  violation  of  federal 
statutes  for  the  safety  of  em])loyes  where  there  is 
evidence  tending  to  show  contributory  negligence  on 
the  part  of  the  plaintiif,  the  method  of  instructing 
the  jury  was  thus  well  and  clearly  stated:  "In  cases  of 
this  character,  where  the  evidence  justifies  a  finding 
tliat  both  defendant  and  plaintiff  were  guilty  of  negli- 
gence contributing  to  the  accident,  the  jury  should  be 
carefully  instructed  conceraing  the  rule  of  comparative 
negligence  established  by  the  federal  statute.  It  is  the 
duty  of  the  jury  first  to  determine  whether  or  not  the 
defendant  was  guilty  of  causal  negligence;  for,  if  that 
issue  is  determined  against  the  plaintiff,  there  can  be 
no  recovery.  If  the  issue  of  the  defendant's  negligence 
is  determined  in  favor  of  the  plaintiff  then  the  jury 
should  consider  whether  or  not  he,  too,  was  guilty  of 
negligence  directly  contributing  to  the  happening  of  the 
accident,  and,  if  they  decide  that  issue  against  the 
plaintiff,  then,  looking  at  the  combined  negligence  of 
the  plaintiff  and  defendant  as  a  whole,  and  using  their 
best  judgment  based  on  the  evidence  before  them,  the 
next  material  subject  for  the  jury  to  consider  is  in  what 
ratio  should  this  combined  negligence  be  distributed 
between  the  parties  to  the  accident;  in  other  words,  how 
much,  or  what  i)roportion,  of  the  whole  blame,  or  fault, 
should  be  attributed  to  each.  After  this  problem  is 
solved,  the  jury  must  determine  the  amount  of  the 
damages  suffered  through  the  combined  negligence,  and 
deduct  therefrom  a  proportion  corresponding  with  the 

19.     Chesapeake  &  O.  R.  Co.  v.       v.    Stalcup,   Tex.    Civ.    App. 

Cooper,    168    Ky.    137,    181    S.    W. ,  167  S.  W.  279. 

933;    Fort  Worth  &  D.  C.  R.  Co. 


§  588]  Contributory   Negligence.  1045 

measure   of  iie<^]i<;enee   eliar^'ed   against   tlie   defendant, 
to  be  awarded  as  damages  1o  tin-  plniiiliff. "-" 

§  587.  Instruction  of  Contributory  Negligence  in 
Language  of  Statute  not  Erroneous.  An  in.-t ruction  on 
coiitrihiilory  negligence  in  llie  language  of  the  statute  is 
not  error  in  the  absence  of  a  request  for  a  charge  more 
fully  defining  the  meaning  of  the  statute.  Thus,  a  trial 
court  charged  the  jury  in  an  action  under  the  federal  act 
tliat  in  the  event  they  found  the  plaintiff  guilty  of  con- 
tributory negligence  they  should  reduce  his  damages  in 
proportion  to  the  amount  of  negligence  which  is  at- 
tributable to  liim.  No  other  instruction  defining  the 
word  "proportion"  was  given.  "The  instruction  given," 
said  the  court,-^  "is  almost  in  the  identical  language 
of  the  statute  and  while  definition  might  have  further 
conduced  to  an  appreciation  by  the  jury  of  the  standard 
established  by  the  statute,  we  think  there  was  no  error 
in  the  charge  given,  especially  as  the  railroad  company 
made  no  request  for  a  charge  clarifying  any  obscurity 
on  the  subject  which  it  deemed  existed."  But  an  in- 
struction in  the  language  of  the  statute,  that  is,  that  the 
damages  sliould  l)e  diminished  by  the  jury  in  pro- 
])ortion  to  the  amount  of  negligence  attributable  to  the 
plaintiff  with  the  additional  qualifying  clau.se,  "as 
compared  with  the  negligence,  if  any,  attributable  to  the 
defendant,"  was  erroneous  for  the  reason  that  the  clause 
"as  compared  with  the  negligence,  if  any,  attributable 
to    the   defendant"    does   not    state    the    correct    rule.-^ 

§    588.      Erroneous    Instructions    on    Contributory 
Negligence  Under  the  Federal  Act.     In  an  action  under 

20.  Waina  v.  Pennsylvania  Co.,  jury  in  proportion  to  tlie  amount 
251  Pa.  213,  96  Atl.  461.  of  negligence  attributable  to  such 

21.  St.  Louis  &  S.  F.  R.  Co.  employe  follows  the  language  of 
V.  Brown,  241  U.  S  233  60  L.  Ed.  the  statute  and  is  not,  therefore. 
966,  36  Sup.  Ct.  602;Contra,  Nash-  erroneous.  Kippenbrock  v.  Wa- 
ville,  C.  &  St.  L.  R.  Co.  v.  Banks,  bash  R.  Co.,  270  Mo.  479.  194  S. 
156  Ky.  C09,  161  S.  W.  554.  W.   50. 

An    instruction    that    the    dam-  22.      Cross   v.   Chicago,   B   &   Q. 

ages  should  be  diminished  by  the       R.  Co.,   191   Mo.  App.  2i)2.   177   S. 

W.  1127. 


1046  Injuries  to  Interstate  Employes.        [<§  588 

the  federal  act,  a  trial  court  instructed  the  jury  as  to  the 
effect  of  contributory  negligence,  as  follows:  ''Con- 
tributory negligence  is  the  negligent  act  of  a  plaintiff 
which,  concurring  and  co-operating  with  the  negligent 
act  of  a  defendant,  is  the  proximate  cause  of  the  injury. 
If  you  should  find  that  the  plaintiff  was  guilty  of  con- 
tributory negligence  the  act  of  Congress  under  which 
this  suit  was  brought  proAddes  that  such  contributory 
negligence  is  not  to  defeat  a  recovery  altogether,  but  the 
damages  shall  be  diminished  by  the  jury  in  proportion 
to  the  amount  of  negligence  attributable  to  such  em- 
ploye. So,  if  you  reach  that  point  in  your  deliberations 
where  you  find  it  necessary  to  consider  the  defense  of 
contributory  negligence,  the  negligence  of  the  plaintiff 
is  not  a  bar  to  a  recovery,  but  it  goes  by  way  of  dim- 
inution of  damages  in  proportion  to  his  negligence, 
as  compared  with  the  negligence  of  the  defendant. 
If  the  defendant  relies  upon  the  defense  of  contributory 
negligence,  the  burden  is  upon  it  to  establish  that  de- 
fense by  a  preponderance  of  the  evidence."  The  phrase 
in  the  quoted  instruction,  "as  compared  with  the  neg- 
ligence of  the  defendant"  was  condemned  by  the 
Supreme  Court  of  the  United  States  as  being  improper 
under  the  federal  act.^^  Concerning  this  instruction, 
Mr.  Justice  Van  Devanter,  speaking  for  the  court, 
said:  "The  other  criticism  deserves  more  discussion. 
The  thought  which  the  instruction  expressed  and  made 
plain  was  that,  if  the  plaintiff  had  contributed  to  his 
injury  by  his  own  negligence,  the  diminution  in  the 
damages  should  be  in  proportion  to  the  amount  of  his 
negligence.  This  was  twice  said,  each  time  in  terms 
readily  understood.  But  for  the  use  in  the  second  in- 
stance of  the  additional  words  'as  compared  with  the 
negligence  of  the  defendant'  there  would  be  no  room 
for  criticism.  Those  words  were  not  happily  chosen, 
for  to  have  reflected  what  the  statute  contemplates 
they  should  have  read  'as  comi^ared  with  the  combined 

23.  Norfolk  &  W.  R.  Co.  v.  1914C  172.  See  also  West  Jersey 
Earnest,  229  U.  S.  114,  57  L.  Ed.  Trust  Co.  v.  Philadelphia  &  R.  R. 
1096,  33   Sup.  Ct.   654,   Ann.   Cas.       Co.,  88  N.  J.  L.  102,  95  Atl.  753. 


§    588]  CONTEIBUTORY     NEGLIGENCE.  1047 

iie^-ligence  of  himself  and  the  defendant.'     We  say  this 
because    tlie    statutory    direction    tliat    tlie    diminution 
shall   be   'in   proportion   to   the   amount   of   negligence 
attributable  to  such  employe'  means,  and  can  only  mean, 
that,  where  the  causal  negligence  is  partly  attributable 
to  him  and  partly  to  the  carrier,  he  shall  not  recover 
full  damages,  but  only  a  proportional  amount,  bearing 
the  same  relation  to  the  full  amount  as  the  negligence 
attributable  to  the  carrier  bears  to  the  entire  negligence 
attributable   to    both;    the    purpose   being    to    abrogate 
the  common  law  rule  completely  exonerating  the  carrier 
from  liability  in  such  a  case,  and  to  substitute  a  new 
rule  confining  the  exoneration  to  a   proportional   part 
of  the  damages  corresponding  to  the  amount  of  neg- 
ligence attributable  to  the  employe. "^^     An  instruction 
that   if  the   employe   was   guilty   of   negligence   which 
contributed  to  his  injuries,  the  jury  must  diminish  the 
damages   in   proportion   to    the   amount    of   negligence 
attributable  to  him,  was  held   erroneous  for  the   same 
reason.''     In  another  action  under  the  federal  act  the 
court   instructed   the   jury   that,    if   the    deceased    was 
guilty  of  contributoiy  negligence,  and  ''that  said  neg- 
ligence  directly  contributed  to   his  injury,  you   should 
take  said  negligence  into  consideration  in  arriving  at 
the   amount   of  your  verdict  as   hereinafter   explained, 
if  you  find  from  the  evidence  that  the  plaintiff  is  enti- 
tled to  recover,  but  if  you  find  from  the  evidence  that 
the   contributory  negligence   of  the   deceased.   Otto   N. 
Ross,  was  the  sole  and  proximate  cause  of  his  death, 
then   you    should   find   a   verdict   for    defendant."     A 
verdict  was  returned  for  the  defendant   and   the  trial 
court  set  it  aside  because  the  instniction  was  erroneous 
in  the  latter  jDart  as  to  contributory  negligence.     The 
appellate  court  held  that  the  plaintiff  had  a  right  to  a 
plain   and  unambiguous  instruction   to   the   effect   that 
contributory  negligence  was  not  a  complete  defense  un- 

24.  To  the  same  effect:  Illi-  Co.  v.  Banks,  159  Ky.  609,  161 
nois  Cent.  R.  Co.  v.  Skaggs,  240  S.  W.  554.  Contra:  Kippenbroch 
U.  S.  66,  60  L.  Ed.  528.  36  Sup.  v.  Wabash  R.  Co..  270  Mo.  479, 
Ct.   249.  194  s.  W.  50. 

25.  Nashville,    C.    &    St.    L.    R. 


1048  Injuries  to  Interstate  Employes.        [§  588 

del"  the  federal  statute  referred  to,  but  sliould  be  con- 
sidered in  mitigation  of  danuig(^s;  and  that,  as  the 
lano-iiag-e  nsed  was  doubtful  iu  meaning  and  confusing, 
and  the  trial  judge  believed  that  the  instruction  did 
not  sufficiently  inform  the  jury,  the  order  granting  a 
new  trial  was  not  reversed.'"  A  trial  court  in  an  action 
under  the  federal  act  instructed  the  jury  that  they 
should  determine  the  full  amount  of  damages  sustained 
by  the  plaintiff  and  "deduct  from  that  whatever  amount 
you  think  would  be  proper  for  the  contributory  negli- 
gence." This  charge  was  erroneous  for  the  reason 
that  the  court  thereby  committed  to  the  jury  the  method 
of  diminishing  the  damages  without  naming  any  stand- 
ard to  which  their  action  should  conform  other  than 
their  own  conception  of  what  was  reasonable." 

§  589.  When  Contributory  Negligence  of  Employe 
Does  not  Diminish  Damages — Federal  Safety  Ap- 
pliance Laws.  Even  though  an  employe  injured  or 
killed  while  engaged  in  interstate  commerce  was  guilty 
of  contributory  negligence,  his  damages  cannot  be  re- 
duced when  the  violation  of  a  federal  statute  enacted 
for  the  safety  of  employes,  such,  for  instance,  as  the 
Federal  Safety  Appliance  Act,  Boiler  Inspection  Act 
and  Hours  of  Service  Act,  contributed  as  a  cause  to  the 
injury  or  death.'*'    "According  to  the  evidence  adduced 

26.  Ross  V.  St.  Louis  &  S.  F.  123;  Spokane  &  I.  E.  R.  Co.  v. 
R.  Co.,  93  Kan.  517,  144  Pac.  844.  Campljell,    241    U.    S.    497,    60    L. 

27.  Seaboard  Air  Line  Ry.  Co.  Ed.  1125,  36  Sup.  Ct.  683;  12  N. 
V.  Tilghman,  237  U.  S.  499,  59  C.  C.  A.  1083;  Atchison,  T.  & 
L.  Ed.  1069,  35  Sup.  Ct.  653.  s.    F.    R.   Co.  v.    Swearingen,   239 

An  instruction  on  the  question  u.  S.  339,  60  L.  Ed.  317,  36  Sup. 

of  contributory  negligence  and  its  ct.    121;    Seaboard   Air   Line   Ry. 

effect  on  the  measure  of  damages,  ^o.  v.  Tilghman,  237  U.  S.  499,  59 

which  failed  to  prescribe  the  rule  ^  ^^   ^^g^^  .,^  ^^^  g   ^53.  g^^^j^. 

for  determining  the  amount  of  the  ^^^  ^    ^^    ^    Crockett,  234  U.  S. 

deduction  required  to  be  made,  ^^^  ^^  ^  ^^  ^^^^  ^^  ^^p  ^^ 
was  erroneous.    Davis  v.  Southern 

Ry.  Co.,  N.  C.  ,  96  S.  E. 

^^28  United  States.  Baltimore  §38,  34  Sup.  Ct.  581,  Ann.  Cas. 
&  O.  R.  Co.  V.  Wilson,  242  U.  S.  1914C  168;  Norfolk  &  W.  R.  Co. 
295,    61    L.    Ed.    312,    37    Sup.   Ct.       v.    Earnest,   229  U.   S.   114,   57   L. 


897,  Grand  Trunk  Western  R.  Co. 
V.  Linsay,,  233  U.  S.  42,  58  L.  Ed. 


§  590] 


CoNTHiurioitv    Xegliuence. 


104!) 


l)y  tlio  plaintiff,  lie  was  iiijuivd  on  acfonnt  of  a  (h'U'cA 
in  the  automatic  coupler  in  violation  oi'  the  Safety  Ap- 
])lianee  Act.  The  Supreme  Couil  of  llic  I'^nited  States 
lias  iu'ld  lliat  llic  (lucslion  of  conipai'ative  nc^lif^ence 
does  not  arise  where  llie  ne.nlii^ence  of  the  cai'rier  con- 
sists in  the  violation  of  a  federal  statute,  for  in  such, 
cases  the  defense  of  contributory  negligence  is  entirely 
abrogated  by  the  provision  of  the  act  above  (pioted".^'' 
The  clause  "statute  enacted  for  the  safety  of  emi)loyes" 
in  section  3  of  the  B^'ederal  Kiii]tloyers'  Liability  Act 
refers  only  to  federal  statutes  and  not  to  state  laws/'' 

§  590.  Burden  is  Upon  Defendant  to  Prove  Con- 
tributory Negligence.  In  all  actions  under  the  Federal 
Kni})l()yers'  Liability  Act,  the  l)urden  of  proving  that 
the   plaintiff,   or   the   decedent    in   cases   where   the   ad- 


Ed.  1096,  33  Sup.  Ct.  654,  Ann. 
Cas.  1,914C  172;  St.  Louis  Mer- 
chants' Bridge  Terminal  Ry.  Co.  v. 
Schuerman,  150  C.  C.  A.  203,  237 
Fed.  1;  Clark  v.  Erie  R.  Co.,  230 
Fed.  478;  Johnson  v.  Great  North- 
ern R.  Co.,  102  C.  C.  A.  89,  178 
Fed.  643. 

Alabama.       Louisville   &   N.   R. 

Co.  V.   Hlankenship,  Ala.  — , 

74  So.  960;  Western  Ry.  of  Ala- 
bama V.  Mays,  197  Ala.  367,  72  So. 
641. 

Arkansas.  St.  Louis  Southwest- 
ern R.  Co.  V.  Anderson,  117  Ark. 
41.  173  S.  W.  834. 

Missouri.  Christy  v.  Wabash  R. 
Co.,  195  Mo.  App.  232.  191  S.  W. 
241;  Carpenter  v.  Kansas  City 
Southern  R.  Co.,  189  Mo.  App.  164, 
175  S.  W.  234;  Young  v.  Lusk, 
268  Mo.  625,  187  S.  W.  849;  Moore 
V.  St.  Joseph  &  G.  I.  R.  Co  ,  268 
Mo.   31,    18G   S.    W.    1035. 

New  Jersey.  Parker  v.  Atlantic 
City  R.  Co..  87  N.  J.  L.  148.  93 
Atl.    574. 

South  Carolina.  Steele  v.  At- 
lantic Coast   Line  R.   Co.,   103  S. 


C.   102,  87  S.   E.  639. 

South  Dakota.-  Fletcher  v. 
South  Dakota  Cent.  R.  Co..  36  S.  D. 
401,   155  N.  W.   3. 

"It  is  undisputable  that  plain- 
tiff was  entitled  to  recover  if  the 
tender  was  not  equipped  with  grab- 
irons  and  an  operative  automatic 
coupler  in  the  manner  required  by 
the  Safety  Appliance  Act,  and  if 
the  absence  of  these  or  either  of 
them  contributed  to  his  injury, 
and  this  without  regard  to  any 
question  of  contributory  negli- 
gence." Blair.  J.,  in  Moore  v.  St. 
Joseph  &  G.  I.  R.  Co..  268  Mo.  31. 
186  S.  W.  1035.  affirmed  In  243  U. 
S.  311.  61  L.  Ed.  741.  37  Sup.  Ct. 
278. 

29.  St.  Louis  Southwestern  R. 
Co.  V.  Anderson.  117  Ark.  41.  173 
S.   W.   834. 

30.  Seaboard  Air  Line  R.  Co. 
V.  Horton.  233  U.  S.  492.  58  L.  Ed. 
1062,  34  Sup.  Ct.  635.  8  N.  C.  C. 
A.  834,  L.  R.  A.  1915C  1;  Ann. 
Cas.  1915B.  475;  Smithson  v. 
Atchison,  T.  &  S.  F.  R.  Co.,  174 
Cal.    148,   162    Pac.    111. 


1050  Injuries  to  Interstate  Employes.        [§  590 

ministrator  is  suing*,  was  guilty  of  contributory  negli- 
gence, is  upon  the  defendant. ^^ 

§  591.  Whether  Contributory  Negligence  Must 
be  Pleaded,  Determined  by  State  Law.  The  question 
whether  contributory  negligence  of  the  injured  em- 
ploye, in  order  to  be  available  to  the  defendant  must  be 
pleaded,  is  to  be  determined  by  the  laws  of  the  state 
where  the  action  is  pending,  for  such  a  matter  relates 
to  procedure  and  the  laws  of  the  state  govern  as  to 
procedure  even  in  actions  under  the  Federal  Employers' 
Liability  Act.^-  The  general  rule  is  that  unless  the 
plaintitf 's  contributory  negligence  appears  as  a  matter  of 
law  by  his  proof  the  plea  of  contributory  negligence 
must  be  specially  pleaded,  though  a  few  courts  hold  to 
the  contrary;  but  as  contributory  negligence  under  the 
federal  act  only  mitigates  the  damages,  some  doubt 
exists  as  to  whether  it  must  be  specially  pleaded;  for 
the  general  rule  is,  unless  otherwise  provided  by  statute, 
matters  in  diminution  of  damages  need  not  be  specially 
pleaded.  Such  was  the  rule  at  common  law.^^  The  fed- 
eral courts  have  constantly  held  that  in  ordinaiy  actions 
by  an  employe  against  an  employer,  the  burden  of 
proving  that  the  plaintiff's  negligence  contributed  to 
the  injury,  is  upon  the  defendant.^*  This  rule  is  also 
applicable   to    actions   under   the   Employers'   Liability 

31.  Central  Vermont  R.  Co.  v.  "Contributory  negligence,  even 
White,  238  U.  S.  507,  59  L.  Ed.  under  the  Federal  Employers'  Li- 
1433,  35  Sup.  Ct.  865,  9  N.  C.  C.  A.  ability  Act,  is  a  matter  of  de- 
265;  Ann.  Cas.  1916B  252;  Lusk  fense."  Carpenter  v.  Kansas  City 
V.   Osborne,  127   Ark.   170,   191   S.  Southern  R.  Co.,  sujrra. 

W.    944.  33.  Greenleaf  on  Evidence  (14th 

32.  Central  Vermont  R.  Co.  v.  ed.)  393;  Blizzard  v.  Applegate, 
White,  238  U.  S.  507,  59  L.  Ed.  61  Ind.  368;  Smith  v.  Lisher,  23 
1433,  35  Sup  Ct.  865,  9  N.  C.  C.  A.  Ind.  500;  Osborn;  v.  Lovell,  36 
265,  Ann.  Cas.  1916B  252;  Delano  Mich.  250;  Delevan  v.  Bates,  1 
V.  Roberts  (Mo.  App.),  182  S.  W.  Mich.  97;  Beck  v.  Dowell,  40  Mo. 
771;  Chesapeake  &  0.  R.  Co.,  v.  App.  71;  Atteberry  v.  Powell,  29 
Cooper,    168   Ky.    137,    181    S.    W.  Mo.    429. 

933;     Carpenter    v.    Kansas    City  34.     Washington  &  G.  R.  Co.  v. 

Southern  R.  Co.,  189  Mo.  App   164,       Harmon's  Adm'r,  147  U.  S.  571,  37 
175  S.  W.  234.  L.  Ed.  284,  13  Sup.  Ct.  557;  Hough 


<^  592]  Contributory   Nkcligence.  1051 

Act."  Since,  therefore,  the  federal  Supreme  Court  has 
lield  that  the  burden  of  provin.i,^  contributory  negligence 
of  the  i)laintiff  in  actions  under  the  national  statute  is 
upon  the  defendant,  it  would  seem  to  follow  tliat  it  is 
obligatory  u|)on  the  defendant  to  plead  such  a  defense.^" 
A  statute  of  North  Carolina  provided  that  in  all  actions 
to  recover  damages  by  reason  of  defendant's  negligence, 
where  contributory  negligence  is  relied  on  as  a  defense, 
it  shall  be  set  up  in  the  answer  and  proved  at  the  trial. 
Another  section  of  the  statutoiy  law  of  the  same  state 
provided  generally  that  matters  in  diminution  of 
damages  need  not  be  specially  pleaded.  In  an  action 
by  an  employe  against  a  common  carrier  for  injuries 
under  the  Federal  Employers'  Liability  Act,  it  was 
held  by  the  supreme  court  of  that  state  that  the  de- 
fendant could  not  avail  itself  of  the  partial  defense  of 
contributory  negligence  unless  the  same  was  pleaded  in 
its  answer.  The  court  properly  held  that  the  specific 
statute  mentioned  controlled  in  preference  to  the  general 
statute  as  to  matters  in  mitigation."  If  the  contributory 
negligence  of  the  plaintiff  is  not  pleaded  in  the  de- 
fendant's answer,  an  instruction  presenting  this  de- 
fense should  not  be  submitted.^* 

§  592.  Evidence  of  Contributory  NegUgence  Ad- 
missible Under  General  Denial,  When.  A  carrier  is 
entitled  to  a  fair  opportunity  to  show  in  diminution  of 
damages  any  negligence  attributable  to  the  employe. 
If,  therefore,  the  laws  of  the  forum  provide  that  con- 
tributory  negligence   may   be    shown   under   a    general 

V.  Texas  &  P.  R.  Co.,  100  U.  S.  213,  36.     Delano  v.  Roberts, Mo. 

25  L.  Ed.  612;  Hemingway  v.  lUi-       App ,    182  S.  W.  771;   Carpen- 

nois  Cent.  R.  Co.,  52  C.  C.  A.  477,  ter   v.    Kansas   City   Southern   R. 

114  Fed.  843.  Co.,  189  Mo.  App.  164,   175  S.  W. 

35.     Central  Vermont  R.  Co.  v.  234. 

White,   238   U.   S.   507,   59   L.   Ed.  37.     Fleming  v.  Norfolk  South- 

1433,  35   Sup.   Ct.  865,  9  N.  C.  C.  ern  R.   Co.,   160   N.   C.   196,   76    S. 

A.  205,  Ann.  Cas.  1916B  252;   Sea-  E.   212. 

board   Air  Line  R.  Co.  v.  Moore,  38.     Chesapeake  &  0.  Ry.  Co.  v. 

228  U.  S.  433,  57  L  .Ed.  907,  33  Sup-  Cooper,    168    Ky.    137,    181    S.    W. 

Ct.  580.  933. 


1052  Injuries  to  Interstate  Employes.        [<§  592 

denial,^^  a  trial  court,  in  exehidiiig-  evidonee  to  that  end, 
deprives  tlie  carrier  of  a  federal  rii>-lit  and  the  fact 
that  counsel,  in  attempting-  to  introdnce  the  evidence, 
did  not  state  that  it  was  offered  in  mitigation  only,  does 
not  alter  the  rnle.*°  ''The  state  Supreme  Court  upheld 
the  railroad  company's  claim  of  right,"  said  Mr.  Justice 
MeReynolds  in  the  last  case  cited,  "to  show  contri- 
butory negligence  under  its  general  denial;  but  the 
trial  court  emi)hatieally  denied  this  and  positively  ex- 
cluded all  evidence  to  that  end.  As,  under  the  Federal 
statute,  contributory  negligence  is  no  bar  to  recovery, 
tlie  plain  purpose  in  offering  the  excluded  evidence 
was  to  mitigate  damages.  In  such  circumstances  it 
was  unnecessary  to  go  through  the  idle  form  of  arti- 
culating the  obvious.  If  timely  objection  upon  the 
ground  ultimately  suggested  by  the  Supreme  Court  had 
iDeen  sustained,  it  could  have  been  easily  obviated;  but 
counsel  had  no  reason  to  anticipate  such  a  ruling  and 
certainly,  we  think,  were  not  required  to  do  so  at  their 
peril.  Plaintiff  in  eiTor  has  been  improperly  deprived 
of  a  Federal  right." 

39.     Jones  v.  Kansas  City  South-  40.     Kansas    City    Southern    R. 

ern  R.  Co.,  137  La.  178,  11  N.  C.        Co.  v.  Jones,  241  U.  S.  181,  60  L. 
C.  A.   43,   68   So.   401.  Ed..   943,  36   Sup.  Ct.   513. 


CIIAPTKIJ  XXX. 
Bknkficiakiks  Undek  thk  LiAKii.iTv  Act. 

Sec.  593.     Benoficiarios  under  the  Federal  Statute. 

Sec.  594.  Parents  not  Entitled  to  Damages  when  there  is  a  Widow 
or  Children. 

Sec.  595.  Alien  Dependents  Residing  Abroad  may  Recover  under 
Federal  Act. 

Sec.  596.     Existence  of  Beneficiaries  Named  in  Statute  .Jurisdictional. 

Sec.  597.  Who  are  "Next  of  Kin"  under  Federal  Act  must  be  Deter- 
mined by  State  Law. 

Sec.  598.  Illegitimate  Children  may  be  Next  of  Kin  within  Meaning 
of  Federal  Statute. 

§  593.  Beneficiaries  under  the  Federal  Statute. 
In  case  of  the  death  of  an  employe  under  the  eonditioiis 
desc.ril)ed  in  the  act,  the  i)ersonal  representative  may 
bring  an  action,  first,  for  the  benefit  of  the  widow,  or 
husband  or  children  of  the  employe.'  If  there  be  no 
linsband,  widow  or  children,  then  the  employe's  parents 
become  the  beneficiaries  under  the  federal  act.-  If  there 
be  no  husband,  widow  or  children  and  no  parents  of  the 
employe  surviving  him,  then  the  action  may  be  brought 
for  the  benefit  of  the  next  of  kin  dependent  upon  such 
employe.'      "The    Federal    Employers'    Liability    Act 

1.  Davis'  Adm'r  v.  Cincinnati,  Co.,  235  U.  S.  389,  59  L.  Ed.  283. 
N.  0.  &  T.  P.  R.  Co.,  172  Ky.  55,  35  Sup.  Ct.  127,  8  N.  C.  C.  A.  67, 
188  S.  W.  1061.  Moffett  v.   Baltimore  &  0.  R.  Co., 

2.  Illinois     Cent.     R.     Co.     v.        135  C.  C.  A.  607,  220  Fed.  39. 
Stewart,  138  C.  C.  A.  444,  223  Fed.  Arkansas.     Long  v.  Biddle,  124. 
30;    Moffett  v.   Baltimore  &  O.  R.        Ark.  127.  186  S.  W.  601. 

Co.,    135   C.    C.    A.    607,    220    Fed.  Kentucky.        Cincinnati,    N.    O. 

39;    Berg  v.    Atlantic   Coast  Line  &  T.  P.  R.  Co.  v.  Tucker,  168  Ky. 

R.'co.,  S.   C. ,   93   S.   E.  144.  181  S.  W\  940. 

390;    Tobin  v.    Bruce,  S.   D.  Mississippi     New  Orleans.  M.  & 

,  162  N.  W.  933;   Geer  v.  St.  C.  H.  Co.  v.  .lones.  Ill  Miss.  852. 

Louis,    S.    F.   &   T.    Ry.    Co.,  •  72  So.  G81. 

Tex. ,  194  S.  W.   939.  Missouri.     Smith   v.   Pryor,    195 

3.       United    States.       Seaboard  Mo.  App.  259.  100  S.  W.  t>9. 

Air  Line  Ry.  v.  Kenney,  240  U.  S.  North    CaroUna.     In    re    Stone, 

489,  60  L.  Ed.  762,  36  Sup.  Ct.  458;  173  N.  C.  208,  15  N.  C  C.  A.  665. 

McGovern  v.  Philadelphia  &  R.  R  91  S.  E.  852. 

(1053) 


1054  Injuries  to  Interstate  Employes.        [<§.  593 

provides  that  an  actiou  shall  be  brought  by  the  personal 
representative  of  the  deceased  employe  'for  the  benefit 
(1)  of  the  sursdving  widow,  or  husband  and  children  of 
such  employe;  and,  if  none,  then  (2)  of  such  employe's 
parents;  and  if  none,  then  (3)  of  the  next  of  kin  de- 
pendent upon  such  emploj^e.'  The  federal  statute  there- 
fore creates  three  classes,  which  are  separate  and  dis- 
tinct from  the  other.  If  there  is  any  member  of  the 
first  class,  the  other  two  are  excluded.  If  there  is  none 
of  the  first  class,  but  one  or  more  of  the  second,  then 
the  third  class  will  be  excluded.  If  any  member  of  the 
last  class  does  not  come  under  the  provision  'dependent 
upon  such  employe'  (Allen,  J.,  Dooley  v.  Railroad,  163 
N.  C.  454,  79  S.  E.  970),  then  such  person  is  excluded 
from  that  class,  and  if  such  exclusion  shall  apply  to  the 
whole  of  that  class,  then  there  can  be  no  recovery."* 

§  594.  Parents  not  Entitled  to  Damages  when 
there  is  a  Widow  or  Children.  Under  the  federal  act 
the  intestate's  mother  is  not  entitled  to  share  in  the 
damages  when  there  is  a  widow. ^  This  conclusion 
necessarily  follows  from  a  reading  of  the  statute,  be- 
cause none  of  the  beneficiaries  in  the  second  class,  the 
parents,  are  entitled  to  any  damages,  no  matter  how  de- 
pendent they  were,  if  the  decedent  left  surviving  him 
dependent  beneficiaries,  named  in  the  first  class,  that 
is,  a  widow  or  children.  On  the  other  hand,  if  there 
are  no  beneficiaries  specified  in  the  first  class,  the 
beneficiares  mentioned  in  the  second  class  may  then 
recover,  if  they  prove  a  pecuniary  loss  by  reason  of 
the  death  of  the  deceased. 

Ohio.     Ransom  v.  New  York,  C.  5.     Goen   v.    Baltimore   &  O.    S. 

&  St.  L.  R.  Co.,  93  Ohio,  St.  223,  13  W.    R.    Co.,    179    111.    App.    566; 

N.  C.  C.  A.  447,  L.  R.  A.  1916E  704,  Davis'  Adm'r  v.  Cincinnati,  N.  O. 

112  N.  E.  586.  &  T.  P.  R.  Co.,  172  Ky.  55,  188  S. 

Texas.     St.  Louis,  S.  F.  &  T.  Ry.  W.  1061;   Geer  v.  St.  Louis,  S.  F. 

Co.  V.   Geer,  Tex.   Civ.  App.       &  T.  Ry.  Co.,  Tex.  Civ.  App. 

,  149  S.  W.  1178.  ,  194  S  W.  939;  St.  Louis,  S. 

4.  In  re  Stone,  173  N.  C.  208,   F.  &  T.  Ry.  Co.  v.  Geer,  

15  N.  C.  C.  A.  665,  91  S.  E.  852.    Tex.  Civ.  App.  ,  149  S.  W. 

1179. 


^  595]  Beneficiaries   Under  Act.  1055 

§   595.      Alien   Dependents   Residing    Abroad   may 
Recover    under    Federal    Act.  Whetlier    alien    de- 

poiidcnts  of  a  person  killed  by  the  ne^li^ence  of  another 
can  recover  has  been  the  subject  of  conflicting:  decisions 
by  the  courts  of  this  country,  some  holdini^  that  tliey 
are  included  as  beneficiaries  under  suits  giving  actions 
for  death,  and  others  holding  that  they  are  excluded." 
A  federal  district  court  held  tliat  the  Federal  Em])loyers 
Liability  Act  did  not  authorize  a  recovery  for  the  sole 
benefit  of  alien  parents  of  an  employe,  who  resided 
abroad.^  But  when  this  case  reached  the  Supreme  Court 
of  the  TTnited  States  on  writ  of  error,  that  court  held 
such  parents  could  recover  for  the  death  of  an  employe 
in  an  action  under  the  federal  act.^  In  so  holding, 
Mr.  Justice  Holmes,  after  referring  to  cases  from  other 
jurisdictions,®  said:  "We  may  refer  to  these  cases  for 
their  reasoning  without  reproducing  it,  and  need  not  do 
much  more  than  add  that  the  policy  of  the  Employers- 
Liability  Act  accords  with  and  finds  expression  in  the 
universality  of  its  language.  Its  purpose  is  something 
more  than  to  give  compensation  for  the  negligence  of 

6.      Some    of   the    decisions    af-       332.  60     L.  R.  A.  589.  95  Am.  St. 
firming  that  alien  beneficiaries  can       Rep.   947.  91  N.  W.  979. 
recover,    are   the    following:    Szy-  7-     McGovern  v.  Philadelphia  & 

manski  v.  Blumenthal,  3  Pennew.       R-  Ry-  Co.,  209  Fed.  975. 
(Del.)    558.    52    Atl.    347;     Kelly-  «.     McGovern  v.  Philadelphia  & 

ville  Coal  Co.  v.  Petraytls,  195  ^-  ^-  Co..  235  U.  S.  389,  59  L.  Ed. 
111.   215,   88   Am.   St.   Rep.   193.   63        ^83,  35  Sup.  Ct.  127,  8  N.  C.  C.  A. 

67.  Accord:  Bombolis  v.  Minnea- 
polis &  St.  L.  R.  Co..  128  Minn. 
112,  150  N.  W.  385;  Kipros  v. 
Uintah  R.  Co.,  45  Utah  389.  146 
Pac.    292. 

9.  The  cases  referred  to  were 
Am.  St.  Rep.  534.  93  N.  W.  1057  ^^^  following:  Kellyville  Coal  Co. 
Others  denying  the  right  of  r^  ^  Petraytis,  195  111.  215,  88  Am. 
covery  are:  Maiorano  v.  Balti-  gt.  Rep.  193;  63  N.  E.  94.  aff'g 
more  &  0.  R.  Co.  216  Pa.  402,  21  95  m  /^pp  (335.  Atchison.  T.  & 
L.  R.  A.  (N.  S.)  271,  65  Atl.  1077;  s.  F.  R.  Co.  v.  Fajardo.  74  Kan. 
Deni  v.  Pennsylvania  R.  Co.,  181  314.  6  N.  R.  A.  (N.  S.)  681.  86 
Pa.  525.  59  Am.  St.  Rep.  676,  37  Pac.  301;  Melzner  v.  Northern  Pac. 
Atl.  558;  McMillan  v.  Spider  Lake  R-  Co..  46  Mont.  277,  127  Pac.  1002; 
■.r,,,   or        1.       r^       ,-,r  ^r,  Mulhall  V.  Fallou,  176  Mass.  266,  54 

Saw  MUl  &  Lumber  Co..  115  Wis.       ^   ^   ^    934    79  ^^    g^   j^^p    g^g^ 

57  N.  E.  38G. 


N.  E.  94.  aff'g  95  111.  App.  635; 
Mulhall  V.  Fallon,  17G  Mass.  266 
54  L.  R.  A.  934.  79  Am.  St.  Rep. 
309.  57  N.  E.386;  Renlund  v.  Com- 
modore Min.  Co.,  89  Minn.  41,  99 


1056  Injuries  to  Interstate  Employes.        [§  595 

railroad  companies.  Even  if  that  were  its  only  object, 
we  might  accept  the  distinction  expressed  in  Mulhall  v. 
Fallon,  supra,  between  the  duties  imposed  by  a  statute 
upon  persons  in  another  state  and  benefits  conferred 
upon  them.  Extra-territorial  application  would  natural- 
ly not  be  given  to  the  first,  'but  rights  can  be  offered 
to  such  persons,  and  if,  as  is  usually  the  case,  the  power 
that  governs  them  makes  no  objection,  there  is  nothing 
to  hinder  their  accepting  what  is  offered.'  Mulhall  v. 
Fallon,  supra  (p.  268).  The  rights  and  remedies  of  the 
statute  are  the  means  of  executing  its  policy.  If  this 
'puts  burdens  on  our  own  citizens  for  the  benefit  of 
non-resident  aliens,'  as  said  by  the  district  court, 
quoting  the  Deni  case,  supra,  it  is  a  burden  imposed  for 
wrongdoing  that  has  caused  the  destruction  of  life. 
It  IS  to  the  prevention  of  this  that  the  statute  is  direct- 
ed. It  is  for  the  protection  of  that  life  that  compen- 
sation for  its  destruction  is  given  and  to  those  who  have 
relation  to  it.  These  may  be  wife,  children  or  parents. 
The  statute,  indeed,  distinguishes  between  them,  but 
what  difference  can  it  make  where  they  may  reside? 
It  is  the  fact  of  their  relation  to  the  life  destroyed  that 
il"  the  circumstance  to  be  considered,  whether  we  con- 
sider the  injury  received  by  them  or  the  influence  of 
that  relation  upon  the  life  destroyed." 

§  596.  Existence  of  Beneficiaries  Named  in  Statute 
Jurisdictional.  If  an  employe  of  a  railroad  suffers 
death  while  the  carrier  is  engaged  in  interstate  com- 
merce, and  while  he  is  employed  in  such  commerce,  nb 
right  of  action  under  any  law  exists  against  the  carrier 
for  negligence  in  causing  such  death,  where  none  of  the 
classes  mentioned  in  the  federal  statute  exists  or  survive 
the  decedent.  The  right  of  action  given  under  the 
federal  law  is  conferred  upon  them  and  no  one  else. 
Hence  the  existence  of  such  beneficiaries  is  jurisdictional 
to  a  right   of  action.'"    That   no   action  exists  for  the 

10.    United    States.        Seaboard       S.    489,    60    L.    Ed.    762,    36    Sup. 
Air   Line  Ry.   v.  Kenney,    240   U.       Ct.    458;    MofEett   v.    Baltimore    & 


§  596] 


Beneficiaries   Under  Act. 


lor/ 


death  of  an  employe  unless  the  hciieficaries  named  in 
the  act  survive  was  affirmed  l)y  tlic  Supreme  Court  ot 
the  United  States/'  In  the  Garrett  case,  the  court  said: 
"The  nature  of  the  ri<;-hts  and  responsibilities  arising 
out  of  this  act  has  l)een  discussed  and  determined  in 
four  opinions  announced  by  this  court  since  the  instant 
cause  was  decided  by  the  Circuit  Court  of  Ai)i)eals. 
Michii-'an  C.  "R.  Co.  v.  \'reeland,  227  U.  S.  59,  57  L. 
Ed.  417,  XI  Sup.  Ct.  Hep.  192,  Ann.  Cas.  19UC.  ]l(m; 
American  R.  Co.  v.  Didricksen,  227  U.  S.  145,  57  L.  Ed. 
456,  33  Sup.  Ct.  Rep.  224;  Gulf,  C.  &  S.  F.  R.  Co.  v. 
McGinnis,  228  U.  S.  173,  57  L.  Ed.  785,  33  Sup.  Ct.  Rep. 
426,  3  N.  C.  C.  A.  806;  North  Carolina  R.  Co.  v.  Zachary, 
232' U.  S.  248,  58  L.  Ed.  591,  34  Sup.  C^t.  Rep.  305,  Ann. 
Cas.  1914C  159.  It  is  now  definitely  settled  that  the 
act  declared  two  distinct  and  independent  liabilities 
resting-  upon  the  common  foundation  of  a  wrongful 
injury :  (1)  liability  to  the  injured  employe  for  which 
he  alone  can  recover;  and  (2),  in  case  of  death,  liability 
to   his  personal   representative   'for   the   benefit    of   the 


0.  R.  Co.,  135  C.  C.  A.  607,  220 
Fed.  39;  Thomas  v.  Chicago  & 
N.  W.   R.   Ry.  Co.,   202   Fed.   760. 

Arkansas.  Long  v.  Biddle,  124 
Ark.  127,  186  S.  W.  601. 

Kansas.  Griffith  v.  Midland 
Valley  R.  Co.,  100  Kan.  500,  1G6 
Pac.  467. 

Kentucky.  Cincinnati,  N.  O. 
•"-  T.  P.  R.  Co.  V.  Hansford,  173 
•^"V.  126,  190  S.  W.  690;  Illinois 
Cent.  R.  Co.  v.  Doherty's  Adm'r, 
153  Ky.  363,  47  L.  R.  A.  (N.  S.) 
31,   155    S.   W.    1119. 

Mississippi.  New  Orleanst.  M. 
&  C.  R.  Co.  V.  Jones,  111  Miss. 
852,  72  So.  681. 

Montana.  Melzner  v.  Northern 
Pac.  R.  Co.,  46  Mont.  277.  127 
Pac.    1002. 

Washington.  Crevilli  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  98  Wash.  42, 
107    Pac.    66. 


"It  is  conceded  that  if  the  fed- 
eral statute  was  applicable,  the 
state  statute  must  yield  to  it,  and 
the  plaintiff  is  not  entitled  to  re- 
cover because  decedent  did  not 
leave  surviving  him  a  widow  or 
children,  parents  or  other  next 
of  kin  dependent  upon  him." 
Long  V.  Lusk,  supra. 

Suit  by  half  brothers  and  sis- 
ters of  a  porter  on  an  interstate 
passenger  train,  who  were  not 
dependent  on  him  and  who  re- 
ceived no  support  from  him  in 
his  lifetime,  cannot  be  sustained. 
New  Orleans,  M.  &  C.  R  Co.  v. 
.lones,  supra. 

11.  Garrett  v.  Louisville  &  N. 
R.  Co.,  235  U.  S.  308,  59  L.  Ed. 
242,  35  Sup.  Ct.  32,  117  C.  C  A. 
109.  197  Fed.  715.  3  N.  C.  C.  A 
769. 


1058  Injuries  to  Inteestate  Employes.        [§  596 

surviving-  widow  or  liusband  and  children,'  and  if  none, 
then  of  the  parents,  which  extends  only  to  the  pecuniary 
loss  and  damage  resulting  to  them  by  reason  of  the 
death." 

§  597.  Who  are  "Next  of  Kin"  under  Federal 
Act  must  be  Determined  by  State  Law.  Section  1  of  the 
act  provides  that  suit  for  the  death  of  an  interstate  em- 
ploye may  be  brought  by  the  personal  representative 
for  the  benefit  of  the  sui'\'iving  widow  or  husband  and 
children  of  such  employe ;  and,  if  none,  then  of  such  em- 
ploye's  parents,  and,  if  none,  then  of  the  next  of  kin 
dependent  upon  such  employe.  In  the  enforcement  of 
the  statute  it  has  been  contended  that  the  expression 
"next  of  kin"  as  used  in  the  first  section  of  the  act 
should  be  construed  by  the  common  law  disregarding 
the  state  law  defining  those  words;  but  the  federal 
Supreme 'Court  has  held  that  the  next  of  kin  for  the 
purpose  of  the  recovery  under  the  federal  act  are  the 
next  of  kin  as  established  by  the  law  of  the  state  where 
the  right  to  recover  obtains.^^  "Plainly  the  statute," 
said  the  court  in  the  Kenney  case,  cited,  "contains  no 
definition  of  who  are  to  constitute  the  next  of  kin  to 
whom  a  right  of  recovery  is  gTanted.  But  as,  speaking 
generally,  under  our  dual  system  of  government  who 
are  next  of  kin  is  deteimined  by  the  legislation  of  the 
various  States  to  whose  authority  that  subject  is  normal- 
ly committed,  it  would  seem  to  be  clear  that  the  ab- 
sence of  a  definition  in  the  act  of  Congress  plainly 
indicates  the  purpose  of  Congress  to  leave  the  de- 
termination of  that  question  to  the  state  law.  But  as  it  is 
urged  as  next  of  kin  was  a  term  well  known  at  common 
law,  it  is  to  be  presumed  that  the  words  were  used  as 
having  their  common  law  significance  and  therefore  as 
excluding  all  persons  not  included  in  the  term  under  the 
common  law,  meaning  of  course  the  law  of  England  as 
it  existed  at  the  time  of  the  separation  from  the  mother 
country.  Leaving  aside  the  misapplication  of  the  rule 
of  construction  relied  upon,  it  is  obvious  that  the  con- 

12.     Seaboard   Air  Line   Ry.   v.        Kenney,  240  U.  S.  489,  60  L.  Ed. 

762,    36   Sup.   Ct.    458. 


§  598]  Beneficiaries   Undeu  Act.  1059 

tention  amounts  to  sayiiif?  that  Cono-icss  hy  the  mere 
statement  of  a  class,  that  is,  next  of  kin,  without  de- 
fining whom  the  class  embraces,  must  be  assumed  to 
have  overthrown  the  local  law  of  the  States  and  sub- 
stituted another  law  for  it,  when  conceding  that  there 
was  power  in  Congress  to  do  so,  it  is  clear  that  no 
such  extreme  result  could  possibly  be  attributed  to  the 
act  of  Congress  without  express  and  unambiguous 
provisions  rendering  such  conclusion  necessary.  The 
truth  of  this  view  will  be  made  at  once  additionally 
apparent  by  considering  the  far-reaching  consequence 
of  the  proposition  since  if  it  be  well  founded,  it  would 
apply  equally  to  the  other  requirements  of  the  statute — 
to  the  provisions  as  to  the  surviving  widow,  the  husband 
and  children,  and  to  parents,  thus  for  the  pui-poses  of 
the  enforcement  of  the  act  overthrowing  the  legislation 
of  the  States  on  subjects  of  the  most  intimate  domestic 
character  and  substituting  for  it  the  common  law  as 
sterotyped  at  the  time  of  the  separation.  The  argu- 
ment that  such  result  must  have  been  intended  since  it 
is  to  be  assumed  that  Congress  contemplated  uniform- 
ity, that  is,  that  the  next  of  kin  entitled  to  take  under 
the  statute  should  be  uniformly  applied  in  all  the 
States,  after  all  comes  to  saying  that  it  must  be  assumed 
that  Congress  intended  to  create  a  unifonnity  on  one 
subject  by  producig  discord  and  want  of  uniformity  as 
to  many  others." 

§  598.  Illegitimate  Children  may  be  Next  of  Kin 
within  Meaning  of  Federal  Statute.  A  statute  of  the 
state  of  North  Carolina  declares  that  the  illegitimate 
children  of  a  mother  shall  be  considered  legitimate  as 
between  themselves  and  that  their  estate  shall  descend 
and  be  distributed  as  if  they  had  been  born  in  lawful 
wedlock  and  that  in  the  event  of  the  death  of  any  such 
child,  without  children,  his  estate  shall  be  distributed 
among  his  mother  and  such  other  persons  as  would  be 
next  of  kin  as  if  all  the  children  had  been  born  in  lawful 
wedlock.  In  an  action  under  the  Federal  Employers' 
Liability  Act  the  supreme  court  of  North  Carolina  held 


1060  Injuries   to   Ixtkrstate  Employes.         [§  598 

that  by  virtue  of  the  foregoing  statute,  a  snit  could  be 
maintained  by  an  administrator  for  the  death  of  an 
illegitmate  son  wliose  mother  was  dead,  for  the  benefit 
of  the  mother's  legitimate  children  who  were  dependent 
upon  the  deceased  employe/'  The  decision  of  the  state 
court  was  affirmed  by  the  federal  Supreme  Court.'* 
On  the  other  hand,  a  Kentucky  court  of  a]:)peals,  in  a 
suit  under  the  federal  act,  reached  a.  different  conclu- 
sion because  the  law  of  that  state  was  different  from  the 
statute  of  North  Carolina.  It  was  held  by  that  court 
that  a  deceased  railroad  employe  who  was  an  unmarried 
man  bom  out  of  wedlock,  had  no  next  of  kin  and  that 
his  father's  widow  and  children,  although  dependent 
upon   him,   were   not   beneficiaries   under   the    statute.'^ 

13.  Kenuey    v.    Seaboard     Air        762,  36  Sup.  Ct.  458. 

Line  R.    Co.,   167   N.   C.    14,   Ann.  15.     Cincinnati,   N.   O.   &   T.   P. 

Cas    1916E  450,  82  S.  E.  968.  R.  Co.,  v.  Wilson's  Adm'r,  157  Ky. 

14.  Seaboard  Air  Line   Ry.  v.  460,  51  L.  R.  A.    (N.  S.)    308,  163 
Kenhey,  240  U.  S.  489,  60  L.  Ed.  S.  W.  493. 


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